This month’s issue of “Inside Title IX” is focused on the Biden administration’s new Title IX regulations, which will go into effect this Fall. Mitzi Anderson, the UAS Title IX coordinator, wrote to Whalesong to explain why this matters and what it means for the UAS community. Questions asked by Whalesong are in bold. Anderson’s responses are unbolded.
You and other administrators in ATIXA have been awaiting these regulations for a while. What have the reactions been like from Title IX administrators like yourself?
I think most Title IX practitioners are relieved to have the 2024 regulations. ATIXA has noted that the new regulations are about 10% different from the proposed regulations, so we were expecting most of what we see in these regulations. Overall, however, these 2024 regulations are about 60% – 70% different from the 2020 regulations.
In your opinion, what are the most important differences between these regulations and the current regulations?
The regulations cover “sex-based discrimination,” which is very broadly defined to include all forms of sex discrimination, not just sexual harassment. A good reminder is that conduct on the basis of sex does not have to be sexual. Discrimination based on sex includes treating someone differently on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity. Sex-based harassment also includes harassment based on those categories and does not need to be sexual in nature. If the harassment is sexual in nature, then we’re now looking at whether the conduct was severe or pervasive, rather than the severe and pervasive requirement in the 2020 regulations.
We are also seeing a much broader obligation to respond to conduct. While we still do not have jurisdiction over conduct that occurs outside of the United States, we now can consider conduct that occurred outside the US if the effects of that conduct are being experienced on campus. The Title IX office will also have jurisdiction over off-campus behavior if any other university policy, such as student conduct, would have jurisdiction to review the conduct. In other words, if the university has disciplinary authority over any conduct that is out of our educational program or activity, or off-campus, then we can also exercise Title IX jurisdiction over that conduct.
I think a key point in the 2024 regulations is that they allow different treatment on the basis of sex (restrooms, locker rooms, etc.) so long as that different treatment doesn’t subject a person to more than de minimis harm. The regulations note that a policy or practice that prevents a person from participating consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex, which means that such a policy or practice would be in violation of these regulations.
In your opinion, are there areas where these regulations fall short?
The regulations don’t address athletics, and while this isn’t as much of an issue at UAS, it is at the other universities in the UA system. I think institutions want to see guidance around athletics and individuals participating in athletics based on their gender identity.
What do these regulations mean for students at UAS? What changes can students expect to see, especially students in the grievance process?
We’re still assessing all the impacts. The preamble and the regulations are more than 1500 pages. The UA system will be working hard this summer to update our policies and processes to become compliant with the new regulations before August 1st. There will be periods of stakeholder feedback on the draft policies at different points throughout the summer.
We expect to see more Title IX cases because more conduct will be covered. We also expect to be able to informally resolve more complaints, which means cases can reach resolution much faster, without having to go through a highly structured and formalized process. We can now also informally address behavior without a complainant having to even file a formal complaint first. This is a significant tool that we now have to address behavior quickly and with reduced stress for the individuals involved.
One of the biggest differences is that a live hearing is no longer required and with that, cross-examination of the parties is no longer required. Hearings are still permissible, though they may look significantly different.
Confidentiality is another area of change. The 2024 regulations prohibit parties and their advisors from disclosing information or evidence obtained solely through the grievance process, and any inappropriate disclosure must be addressed by the Title IX office. Under the 2020 regulations, the parties could freely speak about their cases.
One last provision to mention is that the 2024 regulations specifically prohibit peer retaliation, or retaliation against a student by another student, for their involvement in a Title IX matter.
How might the implementation of these regulations affect the planned Title IX committee in the Fall?
I think it’s great timing. There is a lot of information that we need to get out to the UAS community about the new regulations and our upcoming policy changes. I hope the Committee will play an active role in sharing that information.
How might the upcoming election impact these regulations? Are they at risk of being reversed if Trump takes office next year?
We are no longer concerned that the next Congress will be able to rescind the regulations under the Congressional Review Act (CRA) lookback provision. Had the regulations been issued in July instead of April, we would have had that concern, but the April release built in enough time to remove that risk. Of course, the next administration, if different from the incumbent, may start the full process to change these regulations yet again.
However, there are about 15 states so far that have filed lawsuits challenging the regulations as unlawful, or claiming that they exceed the authority of the Department of Education. The lawsuits mostly focus on protections for the LGBTQ+ community, specifically individuals using restrooms and locker rooms that correspond with their gender identity. These lawsuits will take time to work their way through the system, but the decisions made by the federal judges hearing these cases could affect the regulations, including the August 1st implementation date.
by AJ Schultz, Editor, interviewing Mitzi Anderson, UAS Title IX Coordinator.
WHALESONG 
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