The U.S. Department of Education released new Title IX regulations on April 19, 2024. The changes include language that broadens what qualifies as sex discrimination and gives schools more freedom in structuring their grievance procedures.
“The final regulations promote educational equity and opportunity for students across the country as well as accountability and fairness, while empowering and supporting students and families,” reads a press release from the DOE.
Title IX is a federal law prohibiting sex discrimination.
Many of the changes reverse those made by the Trump administration in 2020 and are set to take effect on Aug. 1, but the University of Utah’s Office of Equal Opportunity (OEO), which is responsible for ensuring the U’s adherence to federal policies like Title IX, has been planning for the new regulations since the DOE released a draft of the proposed changes in 2022.
“We were waiting for the finalization of those, and we knew there would be some changes,” explained Jess Morrison, the U’s Title IX coordinator. “And since that moment, we’ve been engaging with a lot of internal stakeholders and talking to colleague offices.”
Grievance Procedures
One key change the OEO is still navigating is how to manage its grievance processes.
“[In 2020] the Trump administration issued for the first time federal regulations requiring schools to manage their grievance procedures dealing with sexual harassment in particular ways,” Morrison said.
The requirements made during the Trump administration meant schools had little freedom to tailor their grievance procedures. Postsecondary schools were required to provide live hearings with cross-examinations for them to adhere to federal regulations. If a party chose not to participate in cross-examination, statements made by that party could not be considered when determining responsibility.
“What the 2024 regulations are now doing is saying schools have to manage sexual harassment in particular ways, but also all allegations of sex-based discrimination in particular ways,” Morrison said. “So it’s been more expansive and asking universities to … to more clearly define the grievance process for all discrimination, not just sexual harassment.”
The 2024 regulation changes do not require a live hearing or a cross-examination, but both parties must be given equal access to evidence and a reasonable opportunity to respond to it. Still, Morrison said the U will likely adopt a new grievance procedure that does involve hearings. However, exactly what those hearings will look like is still to be determined.
Sex Discrimination Based on Pregnancy and Sexual Orientation
Other changes, like the newly expanded definition of sex discrimination, won’t require the U to change much about their discrimination policies.
According to a summary of the changes, the new regulation clarifies that “sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
But the U already includes sexual orientation, gender identity, gender expression and pregnancy in their protected classes.
“The university was always doing that and was doing that even before 2020, protecting those groups,” Morrison explained.
While the U will have to update their language to adhere to federal regulation, the U is generally already in compliance with the new Title IX protections. However, the new regulations require U employees who learn a student is pregnant to inform them of the resources and rights they are entitled to.
“There’ll be a specific obligation on employees to let that student know that the Title IX and OEO exists and are able to assist with pregnancy-related accommodations,” Morrison said. “We already do pregnancy-related accommodations, of course, but we expect to get in more because of those new requirements and that new notification component.”
Qualifications for Sexual Harassment
The new Title IX regulations also modify what qualifies as sexual harassment. Currently, the U defines sexual or gender-based harassment under Title IX as “unwelcome conduct which a reasonable person would determine to be: so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s Programs or Activities.”
“That’s hard to accomplish sometimes,” Morrison said. “It has to be both very severe, so like a very specific, elevated incident, and pervasive means it has to be ongoing and regular and objectively offensive. In order to qualify, if it’s not one of those things, that would not qualify as sexual harassment.”
The new regulations lower the bar for something to qualify as sexual harassment, Morris explained.
“It’s effectively this standard now: sufficiently severe or pervasive,” Morris said. “Now, a one-off event under the new regulations would qualify as sexual harassment. Under the old regulations, a one-off event would not because it would not be pervasive.”
Title IX Lawsuit
Since the new Title IX regulations were released, several Republican states have filed lawsuits against the changes. Utah joined the lawsuit this May.
“The new regulations are contrary to Title IX’s text and history,” reads the states’ complaint. It argues that expanded rules disregard Title IX’s original intent of protecting women and transform schools into “ideological centers where only the Defendants’ views are allowed to be heard.”
Gov. Spencer Cox addressed Utah’s decision to join the lawsuit during his May press conference.
“It’s very important to protect our transgender students. We want to make sure that everyone feels safe and protected,” Cox said. “But … we [also] have to protect women, and that’s what Title IX has historically been about.”
Morrison said he and his office are monitoring the lawsuit but will continue to adhere to and adjust to federal policy.
“They’re challenging but they have not yet been successful,” Morrison said. “They may or may not be, and … we will monitor that and adjust as we need to be consistent with state and federal law.”
