After months of anticipation, the U.S. Department of Education (Department) unveiled its updated Title IX regulations last Friday. The final rule's newly expanded definition of sex-based discrimination and harassment goes into effect August 1, 2024, and it will prohibit discrimination based on sex stereotypes, pregnancy or related conditions, sexual orientation, gender identity, and sex characteristics in federally funded schools. Most notably, the rule enumerates legal protections for LGBTQ+ youth from sex-based discrimination and harassment, marking a huge victory for LGBTQ+ youth. The new rule aligns with NASP positions, as adopted by the Leadership Assembly.

A Brief History of Title IX

Passed in 1972 as part of the Higher Education Act, Title IX states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." Should an institution fail to fulfill its responsibilities under Title IX, it can lose access to federal funds. You can read the Title IX Amendments here.

While many people only associate Title IX with girls' and women's sports, it applies to all educational programs and all aspects of a school's educational system. As such, Title IX grants legal protection to students, employees, and school applicants from sex-based discrimination, sexual harassment, sexual assault, interpersonal violence, stalking, or discrimination on the basis of pregnancy. Ultimately, Title IX embodies the federal government's recognition that experiencing sex-based discrimination can limit or deny a person equal access to educational opportunities.

In the past decade, there have been different interpretations of, and guidance related to, Title IX, particularly around what constitutes discrimination "on the basis of sex." This has resulted in an inconsistent patchwork of policies related to how schools treat students on the basis of sexual orientation and gender identity, as well as how they handle reports of sexual harassment or assault.

To address this, the Biden Administration promised to update the Title IX regulations to clarify and expand federal protections for LGBTQ+ people and those who experience sex-based discrimination, harassment, or violence. The Department started the process by releasing its proposed rule in 2022, and after reviewing thousands of public comments (including one submitted by NASP and a NASP-led group comment!) released updated regulations last week. The new rule sets a clear standard for all educational institutions that cannot easily be reversed by a future administration.

New Protections From Sex-Based Harassment Under the Final Rule

The new rule clarifies that Title IX protects people from sexual harassment and sex-based harassment. Now, what does this mean and why does it matter? Under the current regulations (which are in effect until July 31, 2024), Title IX only provided protections from sexual harassment and did not include or define sex-based harassment. While these may sound like the same thing, sex-based harassment is a broader term that covers sexual harassment (i.e., quid pro quo harassment such as extorting unwelcome sexual conduct or specific offenses of sexual assault, dating violence, domestic violence, and stalking) and hostile environment harassment. The Department defined hostile environment harassment as "unwelcome sex-based conduct that, based on the totality of the circumstances, 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 the recipient's education program or activity." Essentially, this means that harassment does not have to be sexually explicit in nature to warrant action under Title IX. This is particularly critical for ensuring that verbal and physical harassment of students, particularly LGBTQ+ students, is addressed.

A Historic Moment for the Rights of LGBTQ+ People in Schools

The necessity of the enumerated antidiscrimination protections for LGBTQ+ people under the new Title IX rule cannot be overstated given the rise in anti-LBGTQ+ policies, rhetoric, and violence and the toll it is taking on LGBTQ+ youth in schools. Last year, NASP tracked hundreds of anti-LGBTQ+ bills, and we have seen the same fervor for discriminatory policies continue this legislative year. In GLSEN's most recent National School Climate Survey, 81.8% of LGBTQ+ students reported feeling unsafe in school because of an aspect of their identity; 83% reported facing harassment, bullying, discrimination, or assault at school; and LGBTQ+ youth overall reported increased levels of mental health issues and suicidality. Additionally, a recent Washington Post report found that school hate crimes quadrupled in states with laws targeting LGBTQ+ people and issues. These data paint a damning picture of the state of LGBTQ+ rights in our schools and communities.

Fortunately, the new Title IX rule provides all federally funded schools with a clear legal mandate to foster safe, supportive, and violence-free environments for LGBTQ+ students, educators, and employees. This includes clarifying that schools must allow transgender and gender diverse students to access sex-separated activities and spaces in a way that is consistent with their gender identity. According to the Department, "this general nondiscrimination principle applies except in the limited circumstances specified by statute, such as in the context of sex-separate living facilities and sex-separate athletic teams. The final regulations do not include new rules governing eligibility criteria for athletic teams."

As said in NASP's recent statement on Title IX, "these rules will support efforts to undo harmful, discriminatory policies in place in many states and localities and will send a strong message that every student has value and discrimination has no place in education." At this time, it is unclear how the new rule, which takes effect August 1, will interact with various state laws and district policies that have sought to eliminate protections for LGBTQ+ youth and prohibit any mention of LGBTQ+ identities and issues in curricula and books. Some federal, state, and local policy makers have already expressed interest in challenging the new rule. NASP policy and advocacy leaders and staff will continue to learn more about what these updates mean for schools and LGBTQ+ youth, as well as monitor efforts to challenge the new rule.

Title IX and School Psychologists

For school psychologists, the final Title IX rule is an important step in aligning federal policy with professional ethical standards, best practices for supporting LGBTQ+ students and other minoritized youth, and professional positions supporting learning environments free from discrimination, harassment, and violence for all students.

Title IX protections also extend to school psychologists and school psychology graduate students working or studying in federally funded schools (e.g., public K-12 schools and any institution of education that receives federal funding, including grants).

At NASP, we are still combing through the 600+ page regulations to determine the full scope of protections and to answer the many, many questions that have sprung up on what this means for various school policies and practices that clash with the new rule. We will continue to share information on the updates to Title IX-including the still long-awaited rule on athletics-and how they will affect schools and school psychologists. In the meantime, below are some key resources from NASP and the Department.

NASP Resources

• Safe and Supportive Schools for Lesbian, Gay, Bisexual, Transgender, Questioning (LGBTQ+) Youth Position Statement
• Safe and Supportive Schools for Transgender and Gender Diverse Students Position Statement
• NASP Resolution on Affirming the Rights to Safe and Supportive Schools and Communities for All Students
• APA/NASP Resolution on Gender and Sexual Orientation Diversity in Children and Adolescents in Schools

U.S. Department of Education Resources

• FACT SHEET: U.S. Department of Education's 2024 Title IX Final Rule Overview
• Summary of Key Provisions of the Department of Education's 2024 Title IX Final Rule
• Resource for Drafting Title IX Policies Under 2024 Regulations

*Please note that this blog does not constitute legal advice or guidance. If you have questions, comments, or concerns about Title IX or anything in this blog, please reach out to NASP's policy and advocacy staff.