2024 Title IX Regulations Resource Center

The 2024 Title IX rule clarifies that a recipient must not separate or treat any person differently based on sex in a manner that subjects them to more than de minimis harm, except in the limited specified circumstances permitted by Title IX. The rule says that preventing a person from participating in an educational institution's education program or activity consistent with their gender identity subjects that person to more than de minimis harm. The Department of Education recognizes in its rule that there are exceptions in the rule for athletics teams and living facilities, but not intimate facilities like bathrooms and locker rooms. In those cases, although the Department recognizes that sex separation in certain circumstances, including in the context of bathrooms or locker rooms, is not presumptively unlawful sex discrimination, when such separation imposes more than de minimis injury on a protected individual, such as when it denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity, this would violate Title IX’s general nondiscrimination mandate.

The 2020 Title IX regulations include a detailed process that must be strictly followed, but only when processing allegations of Title IX "sexual harassment" “in an education program or activity" and against "a person in the United States." The new rules broaden the types of discrimination that must be addressed using the grievance process but decrease the requirements for what that process must include. 

Under the new rules, the Title IX grievance process must be used any time there is any information about “sex discrimination.” Sex discrimination includes sex-based harassment (a new term in the regs, which no longer use “sexual” harassment), but also things like sex-based different treatment and disparate impact. The rules also will require that retaliation complaints be processed using a process that complies with the rules if the retaliation is for activity protected by Title IX. 

These changes mean that many more cases will need to be processed using a grievance procedure that meets the requirements of the Title IX rules. But the good news is that the grievance procedure requirements have been slimmed down significantly. The slim-down was not as aggressive as initially proposed in June 2022, but there are still many changes. 

One of the most welcome is that the two ten-day review periods during the investigation process are gone, replaced by one reasonable review of either an investigation summary (i.e., report) or, if a party requests it, the report and the underlying evidence collected during the investigation. 

The 2024 Title IX rule broadens the geographic scope of an educational institution's Title IX responsibilities. The 2020 Title IX rules were clear that a school, college, or university was not required to respond to allegations of sexual harassment under Title IX unless it had substantial control over both the context of the harassment and the alleged harasser. This generally excluded off-campus activity. The 2020 Title IX rule also clearly stated that the Title IX process need not be used for alleged conduct occurring outside of the United States. The 2024 Title IX rule now requires schools to respond to any allegations of sex-based conduct that occurs within its "disciplinary authority," which includes a significant amount of off-campus conduct. The rule also requires schools to respond to a hostile environment in its program or activity even where some part of the underlying sex-based misconduct occurred off campus or outside of the U.S. These provisions will undoubtedly increase the number of cases that fall under Title IX and justify educational institutions taking a close look at what they consider to be within their "disciplinary authority." 

In the preamble to the 2024 rule, the Department does try to calm our nerves about the need to investigate a hostile environment based in part on alleged sex-based conduct occurring off-campus or outside of the country. It says that "[a]lleged conduct, including alleged sex-based harassment, that occurred outside of the recipient’s education program or activity may be relevant to the investigation of, and may inform the recipient’s response to, the allegation of a hostile environment under the education program or activity. But the recipient is not required to respond independently to the alleged conduct that occurred outside the education program or activity." The risk still remains that educational institutions may be required to determine whether there is sufficient evidence that such conduct outside of its program or activity occurred, which will be a significant new challenge. 

The Department made a big change in the final Title IX rules for K-12 schools. The proposed rules had included a new requirement that the Title IX Coordinator consult with a student's IEP or Section 504 team, if they have one, during the Title IX process. In my previous role, I authored a comment with my former colleagues at Thompson & Horton LLP on behalf of a K-12 coalition that pointed out how unworkable that requirement would be. The preamble to the final rule explains: "After careful consideration of the public comments received regarding proposed § 106.8(e), the Department clarifies in the final regulations that the Title IX Coordinator is not required to consult with a student’s full IEP team or Section 504 team and maintains that the final regulations strike the appropriate balance between ensuring that consultation between the Title IX Coordinator and a student’s IEP team or Section 504 team occurs at the elementary school and secondary school level, while not stipulating specific parameters of that consultation." The Title IX Coordinator must consult with "one or more members" of a student's IEP team or Section 504 team, as appropriate. 

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