On Friday, April 19th, the U.S. D.O.E. released its Final Rule under Title IX, a program that ensures education institutions and programs do not discriminate based on sex.

Significant expansions to conduct that triggers Title IX under the new regulations include: 

o  Broadened definition of Sex Discrimination that includes discrimination based on sex stereotypes, sex characteristics, pregnancy or other related conditions, sexual orientation, and gender identity (106.10)

o  Sex-based harassment is defined more broadly as a form of sex discrimination and means sexual harassment or other harassment based on sex (meaning that it does not require the conduct be sexual in nature), including on the bases described above, when it takes the form of:

·      Quid pro quo harassment (conditioning a benefit on a person’s participation in unwelcome sexual conduct)

·       Sexual assault, domestic/dating violence or stalking

·       Hostile environment harassment (unwelcome sex-based conduct, that based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the school’s program or activity.) (106.2)

o  Hostile environment now includes unwelcome sex-based hostile environment that limits or denies a person’s ability to participate or benefit from a school’s program or activity (unlike the 2020 amendments that prohibited harassment that effectively denied a person equal access to a school’s program or activity.)

o  The new regulations do not specifically address use of restrooms and locker rooms but acknowledge that “otherwise permissible sex separation” is consistent with Title IX as long as it is carried out in a manner that does not impose more than de minimis harm.[1] The new regulations clarify that preventing someone from participating in school activity (including sex-separate activities consistent with their gender identity) causes that person more than a de minimis harm.  (106.21(a)(2))

o  A school with knowledge of conduct that constitutes sex discrimination must respond promptly and effectively (versus in a manner that is not deliberately indifferent in the 2020 regulations).

Although more conduct may constitute sex-based discrimination or harassment, the final regulations provide schools with flexibility to adapt the Title IX grievance procedure requirements to their educational communities, as follows:

·      As long as no conflict of interest or bias, a decisionmaker may be the same personas the Title IX Coordinator or investigator (single investigator model) (106.45(b)(2)).

·      Consolidation is now permitted for complaints arising out of the same facts or circumstances.(106.45(e).

·      Schools may offer voluntary informal resolution process unless the complaint includes allegations than an employee engaged in sex-based harassment of a student.(106.44(k)).

The Title IX Coordinator is now required to:

o  Monitor the school’s education program or activity for barriers to reporting sex discrimination.(106.44(b)).

o  In response to a complaint of sex discrimination, initiate the school’s Title IX grievance procedures (see 106.45) or informal resolution process.(166.44(f)(1)(4)).  A “Formal Complaint” is no longer necessary.

o  In the absence or a complaint or the withdrawal of any of the allegations in the complaint, initiate a Title IX complaint only if the conduct presents an imminent and serious threat to someone’s health or safety or prevents the school from ensuring equal access based on sex to its programs or activities.(106.44 (f)(1)(v)-(vi)).

o  Regardless of whether a complaint is initiated, take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur, in additional to providing remedies to a complainant. (106.44(f)(1)(vii). 

The press release from the Department of Education announcing the new regulations and a brief overview of their goals can be found here: U.S. Department of Education Releases Final Title IX Regulations, Providing Vital Protections Against Sex Discrimination | U.S. Department of Education.

For more information, we recommend visiting the following resources available here.

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Leon|Alcala PLLC will offer a training session June 10th to help prepare clients for implementation of the new regulations. You may register for this webinar here. If you are interested in scheduling an in-person or virtual training session for your district, or have any questions regarding the new regulations, please do not hesitate to reach out to us at titleIX@leonalcala.com. Stay informed, stay compliant, and let us guide you through these regulatory changes seamlessly.

[1] Current regulations allow recipients to provide separate toilet, locker room, and show facilities based on sex, so long as the facilities are comparable. 34 CFR106.33

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