On April 19, 2024, after reviewing and responding to over 230,000 public comments, the Department of Education released its 1,577-page Final Rule under Title IX, which prohibits discrimination on the basis of sex in federally funded education. The Final Rule, originally proposed by the Biden Administration in June 2022, is expected to be published in the Federal Register in May 2024 and demands compliance by August 1, 2024, or risk losing federal funding. The Final Rule is notable in that it provides schools and institutions greater flexibility to tailor decisions based on distinctions in school size, the unique populations of students, and specific organizational dynamics.
Among the 2024 Final Rule’s key provisions are the following:
- Scope of Sex Discrimination and Sex-Based Harassment: The Final Rule clarified the scope of sex discrimination and sex-based harassment, providing that sex discrimination and sex-based harassment include discrimination and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
- Sex Separation and Different Treatment: The Final Rule prohibits separation or different treatment based on sex if it causes more than de minimis harm, providing that preventing an individual from participation in an educational program or activity consistent with that individual’s gender identity constitutes more than de minimis harm.
- Accommodations for Breastfeeding: The Final Rule requires that modifications and accommodations be given to breastfeeding students and employees, such as providing reasonable break times for lactation for employees and lactation space for students and employees.
- Protection for Pregnancy or Related Conditions: The Final Rule protects students and employees from discrimination based on medical conditions related to, or who are recovering from, pregnancy, childbirth, termination of pregnancy, and lactation.
- Informal Resolution Process: The Final Rule permits complaints of sex discrimination to be adjudicated via an informal resolution process. Notably, participation in any informal resolution process cannot be mandatory.
Since the release of the Final Rule, 15 states have filed lawsuits against the Department of Education, arguing that the Department acted unconstitutionally in releasing the Final Rule.
The Department of Education’s proposed rule related to athletics, proposed in April 2023, is still under consideration, pending review of over 150,000 public comments.
Leaders at educational institutions are encouraged to consult with legal counsel to discuss their paths to compliance with the Final Rule, including possible revisions to Title IX policies and procedures and training for employees. Varnum’s Higher Education practice team stands ready to assist with any questions or concerns about the New Rule and the application.