Dept. of Education Expands Title IX Protections, Preserves Religious Exemption in Updated Regulations

On April 19, 2024, the U.S. Department of Education (ED) issued its long-awaited “final rule” broadening and clarifying the scope of Title IX, a federal statute that prohibits sex discrimination in education programs receiving federal funding. Among other things, the final rule adopts the view that unlawful sex discrimination “includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” Covered programs have until August 1, 2024, to bring their Title IX programs into compliance. 

The final rule rewrites regulations promulgated in the waning hours of the previous presidential administration and largely adheres to ED's proposed rule released in the summer of 2022. In addition to explicit protections against discrimination based on sexual orientation and gender identity, the final rule lowers the standard for unlawful sexual harassment from “severe, pervasive, and objectively offensive” to “sufficiently severe or pervasive.” The new rule also enhances protections related to pregnancy, childbirth, lactation, and related medical conditions.

Covered education programs will need to review their nondiscrimination policies and grievance procedures in light of the final rule. Beyond the added protections, the rule addresses how schools are expected to handle and investigate complaints of sex discrimination. 

Digesting and applying the final rule will take time. ED's 1,577-page release addresses the more than 240,000 comments submitted in the wake of the 2022 proposed rule.

Although many commenters raised concerns about the impact of ED's expansive reading of Title IX on religious schools, the final rule does not disturb the statutory religious exemption or the 2020 regulations related to that exemption. As before, Title IX does not apply to a religious school to the extent compliance would conflict with the school's “religious tenets.” The rule leaves in place the procedural standards for asserting a religious exemption. 

The final rule arrives shortly after the U.S. Court of Appeals for the Fourth Circuit rebuffed efforts to expand Title IX's coverage to all 501(c)(3) schools, even those that do not participate in government scholarship, subsidy, or loan programs. Overruling an unprecedented lower court decision, the Fourth Circuit held that mere tax-exempt status is not “federal financial assistance” for purposes of triggering Title IX. 

Schools that receive federal financial assistance--directly or indirectly--should carefully review the new rule and implement changes as necessary before it goes into effect this summer. Religious schools with concerns about establishing or maintaining an exemption should contact Sherman & Howard's experienced Religious Organizations team for guidance.