On April 19, 2024, after some delay, the U.S. Department of Education under the Biden Administration issued a new set of final Title IX Regulations regarding sex discrimination. The 1,557-page Final Rule containing the regulations is available for review at the department’s website, along with a fact sheet, summary of key provisions and a resource for drafting related policies. While there was perhaps an expectation that these new regulations would make a big splash politically, the changes to the existing regulations are subtle, but important. The regulations go into effect Aug. 1, 2024.

Five key takeaways that board members should know about:

The new regulations broaden the basis under which a Title IX complaint may be filed. Existing complaint procedures only apply to “sexual harassment” (referred to in the new regulations as “sex-based harassment,” discussed below). But the new regulations’ complaint procedures apply to “sex discrimination” — a broader category of conduct that includes, but is not limited to, sexual/sex-based harassment. Additionally, the definition of “complainant” has been expanded to cover anyone — not just employees or students — who was participating, or attempting to participate, in an LEA’s educational program or activity at the time the alleged discrimination occurred. This creates a significant overlap and potential conflict between Title IX and California’s Uniform Complaint Process and could potentially require processing a complaint under both processes.

The new regulations also make it easier to file a complaint, as complaints may be made either orally or in writing, in contrast to the existing regulations, which require complaints to be in writing. Thankfully, the grievance procedures have also been amended to provide more procedural flexibility for LEAs. For example, a complaint’s investigator and decision-maker may now be the same person.

Under the existing 2020 regulations, the most common way sexual harassment is established was through the creation of a “hostile environment.” “Hostile environment” harassment is “unwelcome conduct” that is so “severe, pervasive and objectively offensive” that it denies equal access to participation in educational programs or activities. In contrast, the new regulations define sex-based harassment (the new term for “sexual harassment”) as unwelcome conduct that 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 educational programs or activities.” These changes make it easier for a student or employee to demonstrate that conduct constitutes sex-based harassment under Title IX. California’s definition of sexual harassment is even more broad, which could mean that certain complaints to which Title IX’s procedures may not be applicable, still must be addressed with the Uniform Complaint Process as required under state law.

The new regulations broaden the scope of Title IX’s protections by adding additional protected characteristics: sexual orientation, gender identity, sex stereotypes and sex characteristics. California law already prohibits discrimination on the basis of gender, gender identity and gender expression so this is not a significant change for California LEAs but would potentially subject complaints of discrimination and harassment on the basis of these protected classes to Title IX complaint processes.

Though the new regulations do not specifically address transgender and gender-nonconforming student participation in athletics, they do prohibit policies and practices that prevent a person from participating in an education program or activity consistent with their gender identity. This is already a requirement of California law under Education Code section 221.5, but is now subject to Title IX complaint processes.

The regulations broaden the scope of Title IX’s protected characteristics to pregnancy and require LEAs to provide certain specific accommodations for pregnant students and employees. This is an affirmative obligation that the Title IX coordinator must undertake upon notice of a student’s pregnancy. Employees with knowledge of a student pregnancy must notify the Title IX coordinator. Since 2019, Education Code section 46015 has required LEAs to provide accommodations for pregnant students, but the statute does not provide the same specificity as to the types of accommodations required by the new Title IX Regulations, so LEAs should be aware of their new obligations.

Existing 2020 regulations require only certain employees to receive Title IX training. However, according to the new regulations, all employees must be trained on the following: (1) an LEA’s obligation to address sex discrimination in its education programs and activities; (2) the scope of conduct that constitutes sex discrimination and sex-based harassment; and (3) all applicable notification and information requirements in the new regulations. This will create a significant obligation for LEAs, especially those with large numbers of employees. These requirements are not limited to employees who have contact with students but apply to all employees with no exemptions or restrictions.

This list is not an exhaustive list of the changes to existing regulations, and LEAs should work with CSBA’s District and County Office of Education Legal Services or legal counsel to ensure they are in compliance with the requirements of the new Title IX Regulations. Fortunately, California LEAs are already complying with similar requirements imposed by state law, so that conforming their practices to the new regulations should not be too difficult. In order to assist LEAs with ensuring they have up to date policies and procedures required by the new regulations, CSBA will be issuing updated GAMUT policies regarding the new Title IX Regulations in a special packet at the end of July.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.