For institutions of higher education, here are the top ten highlights of the 2024 Final Rule and what you need to know as you rework your policies into compliance.

1. Broader Scope and Definitions of Sex Discrimination

Under the new regulations, sex discrimination now includes discrimination based on sexual orientation, gender identity and sex characteristics. This is a big change from the 2020 regulations, which covered sexual harassment but not any other form of sex-based harassment. The new regulations also clarify when sex-based harassment creates a hostile environment with a key change in the totality of the circumstance analysis, in which the unwelcome sex-based conduct is subjectively and objectively offensive, as well as severe or pervasive. With this small word change, the new regulations discard the narrower definition from the 2020 regulations, which required the conduct to be severe, pervasive and objectively offensive.

2 . Live Hearings Are Optional

For colleges and universities, live hearings are now optional, a huge shift from the 2020 mandated live hearing with cross-examination done by the parties’ advisors. If colleges and universities opt to keep live hearings, the decision-maker or the advisors can ask questions of the other party and witnesses—another shift from advisor-only cross-examination. If colleges and universities forego the live hearing, they can choose the single-investigator model. If so, there must be a process that allows the decision-maker to question parties and witnesses to assess credibility if it is in dispute and relevant to the outcome.

3. Conduct Not Limited to Inside the US or Education Program or Activity

While the 2020 regulations did not extend the application of Title IX outside of the education program or activity or the US, the new regulations provide that colleges and universities have an obligation to address a sex-based hostile environment claim even when some of the alleged conduct occurred outside of the education program or activity or outside of the US.

4. Knowledge Versus Actual Knowledge

The 2020 regulations required colleges and universities with “actual knowledge” of sexual harassment allegations to respond in a manner that was “not deliberately indifferent.” The stakes are now higher for institutions to respond to sex discrimination. If a college or university has knowledge of conduct that may reasonably constitute sex discrimination, the institution must respond. How? The Title IX Coordinator must offer supportive measures and then coordinate those measures. The school may also offer informal resolution, except when it would conflict with federal, state or local laws. The Title IX Coordinator must also understand when to initiate a complaint, while also respecting Complainant autonomy.

5. Respecting Complainant Autonomy

The new regulations attempt to balance an environment free from sex discrimination while also emphasizing a Complainant’s autonomy. The new regulations require colleges and universities to provide information and train students on how to seek confidential assistance. Those confidential employees are required to provide students with information about how to contact the Title IX Coordinator, who can offer supportive measures and other assistance, and how to file a complaint. In addition, the new regulations allow former students and employees who are not currently students or employees to file complaints, which the 2020 regulations prohibited.

6. More Rigorous Test for Title IX Coordinator to File Complaint

If a student decides not to file a complaint, the Title IX Coordinator can initiate a complaint only if there is an imminent and serious threat to someone’s health or safety or the failure to file the complaint would prevent the school from ensuring equal access. This goes hand in hand with respecting a complainant’s autonomy to choose whether to file a complaint or not.

7. Informal Resolution More Accessible

The 2020 regulations permitted informal resolution only when a formal complaint of sexual harassment had been filed. Now this option is available for schools to offer not only when they receive complaints of sex discrimination but also when they have information about conduct that may reasonably constitute sex discrimination.

8. Retaliation Defined

Not only do the new regulations define retaliation, they also prohibit peer retaliation. In defining retaliation, the new regulations state that schools must not intimidate, threaten, coerce or discriminate against someone for the purpose of interfering with any Title IX right because that person filed a complaint. It also includes retaliation for a report of possible sex discrimination, as well as where a person has participated or refused to participate in any way in a school’s Title IX process. While the 2020 regulations prohibited retaliation, they did not define or specify “peer retaliation.”

9. Protections for Parental, Family or Marital Status, Including Pregnancy

The new regulations prohibit colleges and universities from treating students, employees and applicants differently on the basis of sex regarding parental, family or marital status. Not only do the new regulations prohibit this type of discrimination, but they also require colleges and universities to take action to ensure equal access, including reasonable modifications for students, reasonable break time for lactation for employees and lactation space for students and employees.

10. Policies That Prevent Students From Participating in Education Programs or Activities Consistent With Gender Identity Violate Title IX

The million-dollar question was whether the new regulations would include any language protecting transgender students’ ability to participate in athletic teams consistent with their gender identity. For now, the answer is no, as the ED intends to issue a separate final rule to address this issue specifically. The new regulations prohibit colleges and universities from separating or treating any person differently based on sex if it subjects that person to more than de minimis harm. The exception to this is in limited circumstances in which the statute allows otherwise—for example, in the context of sex-separated living facilities and athletic teams. However, the new regulations clarify that policies and practices that prevent a student from participating in an education program or activity consistent with their gender identity impose more than de minimis harm and, as a result, violate Title IX.

Despite punting the hot-button issue regarding athletic team eligibility criteria, the ED delivered many changes to the regulations that colleges and universities must address to comply by the August 1 deadline. Colleges and universities will also have to retrain their staff and overhaul procedures they implemented only four years ago.