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Students, parents, educators, and advocates gather in front of the White House to press the Biden Administration to release the long-awaited final Title IX Rule on 5 December 2023 in Washington, DC. (Photo by Leigh Vogel/Getty Images for National Women's Law Center)

DOE Extends Title IX Protections to LGBTQ Student and Staff, Places New Investigatory Requirements on Schools

The U.S. Department of Education (DOE) issued a final rule Friday morning that extends Title IX protections to LGBTQ+ students and employees while clarifying what constitutes sex discrimination at higher education institutions that accept federal assistance.

The new regulations explicitly extend Title IX protections to prohibit discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in U.S. federally funded education programs.

“The final regulations will help to ensure that all persons, including students and employees, receive appropriate support if they experience sex discrimination in schools and that schools’ procedures for investigating and resolving complaints of sex discrimination are accurate and fair to all involved,” according to a DOE fact sheet. “The final regulations strengthen several major provisions from the current regulations and provide schools with information to meet their Title IX obligations while providing appropriate discretion and flexibility to account for variations in school size, student populations, and administrative structures.”

For instance, the new rules clarify that prohibited sex-based harassment includes sexual violence and unwelcome sex-based conduct that creates a hostile environment that limits—or denies—an individual the ability to participate or benefit from an education program or activity.

The updated regulations go into effect on 1 August 2024. The revised regulations do not include provisions addressing sex discrimination in athletics. Those provisions are part of a separate rulemaking process, which is currently in the public comment review process.

What’s Title IX?

Title IX, short for Title IX of the Education Amendments of 1972, prohibits discrimination based on sex in education programs and activities that receive U.S. federal assistance.

“All federal agencies that provide grants of financial assistance are required to enforce Title IX’s nondiscrimination mandate,” according to the DOE. Types of discrimination that are covered under Title IX include, but are not limited to:

  • Sex-based harassment

  • Sexual violence

  • Pregnancy discrimination

  • The failure to provide equal athletic opportunity

  • Sex-based discrimination science, technology, engineering, and math courses and programs

  • Discriminatory application of dress code policies or their enforcement

  • Retaliation

The regulations apply to approximately 17,600 local school districts, more than 5,000 postsecondary institutions, and charter schools, for-profit schools, libraries, and museums, according to the National Center for Education Statistics.

To meet their obligations under Title IX, educational institutions are required to have a Title IX coordinator who manages their compliance efforts. Coordinators’ responsibilities include initiating and overseeing investigations of complaints related to Title IX.

The DOE began the process of updating Title IX nearly two years ago. The revision process was slowed when the department received an unprecedented number of comments—240,000—during the public comment period before the rules could become law.

“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination,” said U.S. Secretary of Education Miguel Cardona in a statement. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”

Advocates argued that the final rules issued on Friday are necessary after former U.S. Secretary of Education Betsy DeVos in 2020 rescinded safeguards under Title IX to narrow the definition of sexual harassment.

The DeVos amendments also changed how schools investigated sex discrimination and assault allegations—moving from a sole official to a judicial system style process “where the accused has the right to a hearing and a cross-examination of any accusers,” Security Management reported at the time.

What’s New for Security?

Along with extending protections to LGBTQ students and staff, the new Title IX rules are designed to strengthen protections for students and provide clear rules to help schools meet their Title IX obligations.

There are several provisions in the new rules that will affect campus security and safety processes and procedures that security practitioners should take note of.

Location. Title IX regulations will now also apply to conduct in any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.

“Under the final regulations, a recipient is required to address a sex-based hostile environment in its education program or activity in the United States, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States,” the DOE said.

Prompt Action. Schools subject to Title IX regulations must now take “prompt and effective action” to stop sex discrimination in their programs and activities. To meet these objectives, schools are required to train employees about the obligation to address sex discrimination and requirements to notify or provide contact information for the Title IX coordinator.

Upon receiving a notification of conduct that might reasonably constitute sex discrimination, the Title IX coordinator is required to offer and coordinate supportive measures for the complainant, notify the complainant or the individual who reported the conduct of grievance procedures and the informal resolution process, and initiate those procedures, among other duties.

“Supportive measures cannot be unreasonably burdensome to a party and cannot be imposed for punitive or disciplinary reasons,” the DOE explained. “Supportive measures may include, for example, counseling, extension of deadlines, restrictions on contact applied to one or more parties, and changes in class, work, or housing.”

Investigatory Mechanisms. Schools are required to have a fair, transparent, and reliable process that uses trained, unbiased decision makers to evaluate evidence in Title IX investigations.

The new rules include requirements for how schools conduct investigations, such as by treating complainants and respondents equitably; grievance procedures that provide adequate notice to all parties of allegations, dismissal, delays, meetings, proceedings, and determinations; and grievance procedures to give parties an equal opportunity to present and access relevant evidence, as well as the opportunity to respond to evidence.

“A school’s grievance procedures must include a presumption that the respondent is not responsible for the alleged sex discrimination until a determination is made at the conclusion of the school’s grievance procedures,” according to the DOE.

Decision makers must also have a process to assess an individual’s credibility during disputes. This could include questioning by an investigator or decision maker during individual meetings or a live hearing. In the case of a live hearing, schools must allow individuals to request to participate from separate locations using technology and create a recording or transcript of the hearing to be made available to all parties for review.

The rules also outline that decision makers cannot “draw inference” of whether sex-based harassment occurred based “solely on a party’s or witness’s refusal to respond to relevant and permissible questions,” the DOE said.

When evaluating evidence, schools are required to use the “preponderance of the evidence standard of proof” (that something is more likely to be true than not true) unless the schools use a “clear and convincing evidence standard” (a medium level burden of proof) in all comparable proceedings, the DOE explained.

Additionally, parties are required to be notified in writing of the determination whether sex discrimination occurred, as well as the reason the determination was made and processes for appeal.

Adaptability. The new rules allow schools to use a single-investigator model or an informal resolution process for sex discrimination complaints, unless the complaint includes allegations that a school employee engaged in sex-based harassment of an elementary school or secondary school student or the process conflicts with existing laws.

Retaliation. Friday’s rules clarify that schools are not allowed to intimidate, threaten, coerce, or discriminate against an individual to interfere with their Title IX rights, because they reported sex discrimination, or because they participated in or refused to participate in the school’s Title IX process.

“The final regulations also make clear that schools must protect students from peer retaliation by other students,” the DOE said.

Privacy. The final rule limits schools from sharing personally identifiable information obtained through complying with Title IX, with a few exceptions. These include consent from a parent on data that is about their minor child or written consent.

“These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination,” said U.S. Assistant Secretary for Civil Rights Catherine E. Lhamon in a statement. “We look forward to working with schools, students, and families to prevent and eliminate sex discrimination.”