The long-awaited Title IX 2024 Regulations were announced by the U.S. Department of Education (DOE) on April 19, 2024, and published in the Federal Register ten days later.
As the 2022 Notice of Proposed Making had promised, the 2024 Final Rule firmly stated that the Trump era 2020 “one-size-fits-all” Regulations failed to provide needed clarity regarding the scope of sex discrimination, including the obligations of educational institutions which receive Federal financial assistance not to discriminate based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity.”
No longer were the Regulations limited to prohibiting sexual harassment, but the 2024 Regulations prohibited all categories of sex-based harassment, specifically aligning Title IX with Title VII, according to the Supreme Court’s majority decision in Bostock v. Clayton County, Georgia.
However, the “pushback” began with the April 29th publication of the Final Rule, with seven states filing lawsuits against various DOE-related defendants, including Miguel Cardona, Secretary of the DOE; the United States of America, the Education Department, Catherine Lhamon, Secretary of the Office for Civil Rights (OCR); Randolph Wills, Enforcement Officer for OCR; United States Department of (DOJ), and Attorney General Merrick Garland, as well as Kristen Clarke, Assistant Attorney General for DOJ.
In addition to the seven states filing as plaintiffs (Alabama, Texas, Louisiana, Tennessee, Oklahoma, Arkansas, Kansas), twenty-six other states joined the lawsuits, as well as ultra-conservative groups such as the Independent Women’s Law Center, Moms for Liberty, and Parents Defending Education. The Final Rule is on hold in several states where the lawsuits are playing out.
In addition, the new Regulations are blocked from taking effect at any school where a student’s parent belongs to Moms for Liberty, or where a student is a member of the Young America’s Foundation or Female Athletes United.
And Congress has jumped on the bandwagon: Republicans in the House voted along party lines on July 11, 2024 to block implementation of Biden’s Title IX 2024. According to Inside Higher Education, the GOP lawmakers called the Final Rule “unlawful” and “radical.” Biden has said he would, of course, veto such a bill if enacted by both House and Senate.
The main argument of the recalcitrant states and organizations described above is that the definition of “sex” should not include transgender status or sexual orientation, and that the scope of Title IX should not be based on the Bostock Title VII decision.
Several states also argue that women’s athletics will be undermined by transgender men whose physiology includes testosterone-based athletic superiority. These states disregard DOE’s 2023 NPRM explicitly describing a separate Rule in the works for resolving transgender issues in athletics.
In addition, these legal arguments and tactics collectively act as injunctions preventing the implementation of the new 2024 Title IX Regulations at over 700 colleges in the United States, as well as at innumerable K-12 schools.
While these biased judgments rage, the fact that transgender individuals are a minor subset of the student population attending any recipients of educational institutions receiving Title IX funds goes unrecognized and unconsidered. Most well-respected surveys demonstrate that transgender students constitute at most a meager 1.3% of the total student population K-12 through higher education.
In refusing to honor the required assurance of abiding by Title IX Regulations in order to receive Title IX’s federal funding, these schools and conservative organizations are depriving 98.7% of students at recipient educational institutions the improvements in the 2024 Title IX Regulations, and possibly, even of the Title IX funding itself, including Pell grants. Catherine Lhamon, when Head of OCR under President Obama, has already threatened to cut off Title IX funding for institutional noncompliance with Title IX.
More important are the benefits of Title IX 2024 accessible to students who have been victims of sex-based harassment and/or sex discrimination.
No longer does a complainant of sex discrimination have to sign a written complaint for the Title IX Coordinator. No longer must a formal complaint be lodged before an informal resolution of a complaint can begin. Supportive measures are available for both complainants and respondents to the complaint. No longer must three separate and trained individuals, investigator, decision-maker, and appeals decisionmaker, take part in every grievance process. The size of the institution and the ages of student population of the recipient matter now. Live hearings are no longer mandated in higher education. All involved in implementing the grievance process must be trained and bias-free. Pregnant students and employees do not have to leave school. One-size-fits-all no longer applies to all institutions under Title IX.
A new and vibrantly more specific Title IX 2024 is now available. However, this new version of Title IX 2024 is not retroactive. Title IX 2020 still applies when a recipient of Title IX funding must handle complaints of sexual harassment occurring between August 14, 2020 and July 31, 2024. Title IX 2024 becomes effective August 1, 2024, and requires training for all personnel, now and at least annually, in educational institutions receiving Title IX funding.
Bottom Line for Schools
As of today, there is no injunction specific to Pennsylvania, however, a number of our local schools have been included as being attended by students of Moms For Liberty members. We are closely monitoring court activity and expect the landscape to continue to shift as the various elements of Title IX 2024 are weighed.
