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Over the past 50 years, Title IX regulations have protected students from discrimination based on sex to ensure equal access to educational opportunities. In April 2024, the Office of Civil Rights (OCR) released an updated final rule, which includes several key changes including expanding the scope and definition of sex discrimination to include gender identity (§106.10). All school districts accepting federal funds are expected to comply with the new 2024 regulations by August 1, 2024. However, there are some caveats depending on which state you reside in due to ongoing court challenges, which are noted in a later section.
With this expansion in scope, school districts are seeking to understand the application of this revised definition. To better comprehend the impact of including gender identity in the definition of sex discrimination, the OCR has provided comments and clarifying discussion reflected throughout the 2024 final rule. The Department received various comments from stakeholders and the community regarding protection from discrimination due to gender identity and what the coverage should and should not include.
Let’s explore the OCR’s comments on gender identity:
The Department’s Stance: Defining Gender Identity and Addressing Discrimination Under Title IX
In response to comments regarding the revised definition, the Department stated:
The current definition of gender identity is defined as an individual's sense of their gender referring to an individual's internal sense of their gender, which may differ from their sex assigned at birth. This definition has been used consistently throughout several court cases and has been used widely in laws and policies.
They acknowledge people may not always be aware of others' gender identity, however, it is still considered discrimination regardless of whether they are aware of gender identity or not. This involves treating individuals equally regardless of gender identity and must not show favor or discrimination on the perceived notion of gender identity.
There will not be changes to address sex-based separation or to include discrimination based on transgender status separately from gender identity discrimination. Gender identity encompasses transgender status and aligns with the broad scope of Title IX's protections. It has been noted in the Bostock court case, that “there is no apparent difference between discrimination because of transgender status and discrimination because of gender identity.”
In considering the potential for conflicts between allegations of gender identity discrimination and freedom of expression, the Department states both rights are respected, with no inherent conflict. Individuals should be free from sex discrimination, as well as, first amendment rights should also provide a student’s freedom of speech.
Regarding the topic of gender dysphoria, there is an overlap between Title IX protections and obligations under the Americans with Disabilities Act for individuals. A person may not be discriminated against based on their gender identity and/or based on a disability related to being a transgender person.
While this new definition expands protections under Title IX, it is just as important to note what is not included or covered. For example, the department has yet to provide guidance on sex-separate living facilities and sex-separate athletic teams. The final rule also does not address rules for eligibility criteria for athletic teams.
Adapting to Title IX Updates: Ensuring Compliance and Addressing Gender Identity Protections Amid Legal Challenges
While pages within the final rule section “Title IX’s Coverage of Sex Discrimination” speak directly to gender identity (pg 1233-1236), it is important to note that “gender identity” is found 289 times throughout the entire final regulations document. This should serve as a reminder that these updates have strengthened legal rights and protection from harassment and discrimination based on gender identity. These protections include: the need for schools to provide supportive measures, respond promptly to complaints, end harassment and discrimination, and provide protection from retaliation.
So, how does the change in definition impact school districts and future practices in regards to Title IX compliance? This is an important question to ask, however, the answer is not clear cut. While the final rule is slated to be effective on August 1, 2024, several states are challenging the changes to include gender identity in the definition of sex discrimination. As of June 15, 2024, 26 states have joined lawsuits challenging the 2024 final rule. Temporary injunctions have been granted by two federal judges prohibiting the Department of Education from enforcing the 2024 Title IX Regulations in 10 states including ID, IN, KY, LA, MS, MT, OH, TN, VA, WV. Five other lawsuits against the 2024 regulations are pending and injunctions may follow in 16 additional states. In states where there is already an injunction, the 2020 regulations will continue to apply. Due to these ongoing lawsuits, it is important for school districts to continue to monitor court rulings that may impact their state.
With all of that being said, the past few weeks have proven this is a fluid situation in which rulings may be made or reversed. For those of you who are in a state in which the final rule has not been challenged, you should begin planning for how these changes impact your policies, procedures, and practices. If you reside in a state in which a ruling has been made to block the 2024 final rule, this could be reversed at any time resulting in your district needing to take action to ensure compliance by the August 1st effective date. As a district, you must address how an expanded scope may result in more complaints and cases that will be considered Title IX falling under “sex discrimination”.
6 Considerations to Prepare for the 2024 Title IX Regulations
School districts need to:
take steps to understand the new definition
develop and implement (or be ready to implement) an updated policy
identify your Title IX team
conduct training for your Title IX team
conduct training for your staff
anticipate a higher caseload
In addition to ensuring the internal processes of Title IX complaints are in compliance, student and staff awareness training also needs to reflect the new definitions laid out in the final rule or to reflect the current rulings within your state. Do note that while the new regulations go into effect on August 1st, it is not written into the final rule that staff training needs to be completed by that date and the OCR has confirmed leniency on training deadlines.
Lastly, school districts need to be aware of when state law or local policy conflicts with federal Title IX regulations. The obligation to comply with Title IX is not alleviated by any State or Local law or other requirement that conflicts with Title IX. Repercussions of not following the final rule include:
Failure to comply with federal regulations could result in loss of federal funds and recipient policy or practice that separates or treats students differently based on sex violates § 106.31(a)(2) if the policy or practice prevents a student from participating in the recipient’s education program or activity consistent with their gender identity or otherwise causes a student more than de minimis harm (p 1259, 1524).
Through these efforts, you will be able to ensure your district is in compliance with the upcoming changes in Title IX regulations. Understanding these changes will aid districts in maintaining compliance with Title IX at the federal level, however, while the final rule is important to note, as mentioned above, it is just as important to stay up to date on your state’s current legislation and rulings that surround these new regulations.