Proposed Title IX changes coming to SEMO

Title IX is the most common law prohibiting sex-based discrimination in any federally-funded school or workplace. The law applies to community colleges, institutes with 400 to 70,000 students and doctoral institutions. Title IX is a federal civil rights law, approved by the Education Amendments of 1972.

The U.S. Department of Education — Office of Civil Rights defines Title IX as, “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.”

SEMO interim coordinator of Title IX Trae Mitten said the current Title IX regulations known as the final rule, gives uniformity throughout all institutions to address Title IX violations. He said prior to the final rule, many colleges were inconsistent with their methods of addressing situations.

“Prior to the final rule, every college and university in the entire country had their own policies, procedures and definitions. It led to a lot of different outcomes,” Mitten said. “If you violated a Title IX rule at School A, it might result in expulsion. But if you committed a violation at School B, it might result in a warning. There was no uniformity.”

Mitten said the revision will help “fine-tune” some of the issues in the final rule.

Currently, Title IX violations are handled by using its policy procedures which vary by criteria. To clarify these procedures, Mitten said an example of a Title IX violation outside of sexual violence is not having enough women’s varsity sports.

“The average student doesn't frame [women’s varsity sports] as a Title IX violation because most of us right now have been conditioned to think of Title Nine as sexual violence cases. Sexual violence is a special type of Title IX violation, meeting certain criteria defined under the final rule,” Mitten said.

To solve a Title IX violation, Mitten uses different procedures and policies to address the reported situation. If a student breaks campus rules, the Student Code of Conduct will be used to address the situation. If there is an employee violation, Mitten said he would use HR policies to address the behavior. All of these cases are sent to Mitten and he assesses whether the Title IX “label” should apply to the case.

Using the case descriptions, Mitten determines whether the case “checks-off” the Title IX violation boxes. If the boxes check off, it is a Title IX violation. If not, Mitten will use different policies to handle the case.

“I often explain it to students as we're going to go to the mall. We might go down West End to William. Or, we might go up Broadway to Kingshighway to reach our destination. The destination is still the same which is resolving the situation, which road we take is different,” Mitten said. “Title IX is a road to get us to our destination. The Student Code of Conduct is a different road but ultimately is used to get to the same destination of resolving the case.”

New provisions on sex-based discrimination – minor changes proposed by the Biden-Harris Administration to the “final rule”

On June 23, 2022, the Biden administration proposed new regulations for Title IX. There are 13 new provisions added to the proposed Title IX rules. Currently, the first draft of the new provisions is released. The draft is in the comments phase, a period of time during which institution leaders can send written feedback on the Title IX draft to the administration. The proposed changes include prohibition on all forms of sex discrimination, sexual harassment, sex discrimination off campus, reporting a Title IX violation, resolutions, retaliation and pregnancy.

Sex-based discrimination and harassment

The following four Acts of Title IX’s new provisions set forward definitions for sex-based discrimination, sexual harassment and unwelcome sex-based conduct.

Title IX proposed Act 106.10 will prohibit all forms of sex discrimination, discrimination on the basis of sex, sex characteristics, pregnancy, sexual orientation and gender identity. Gender identity is the only new provision added to the Title IX bill, and the rest of the provisions include minor changes.

Title IX proposed Act 106.2 defines what sex-based harassment entails. Act 106.2 will continue to cover quid pro quo harassment, which is when a manager or authority figure provides explicit or implicit benefits in exchange for aiding or servicing unwanted sexual conduct, sexual assault, dating violence, domestic violence or stalking. The proposed regulations also cover how a hostile environment is defined. Hostile environments entail unwelcome sex-based conduct, or denying or limiting persons to participate in or benefit from federally-funded programs.

The current Title IX Act 106.30 prohibits some, but not all, forms of sex-based harassment. It prohibits unwelcome sex-based conduct only if it is “ … so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

All federally-funded schools or workplaces require a Title IX coordinator. Mitten said using the phrase “ … so severe, pervasive and objectively offensive” to judge sexual harassment creates difficulty in filing the claim.

“[The complaint] has to meet all three of those criteria. So it has to be severe, pervasive and objectively offensive. It’s a relatively high bar. The revision looks to change some of that wording, making the rule less specific,” Mitten said.

Title IX proposed Act 106.11, addresses unwelcome sex-based conduct occurring off-campus. Through the proposed changes, the person discriminated against would be required to report any hostile environments resulting from sex-based discrimination occurring outside their education program or activity, or outside the United States. This proposal follows the Title IX regulation that states “ … no person shall be subjected to discrimination under an education program or activity receiving Federal financial assistance.”

Responding and reporting sex-based discrimination, harassment

The next seven Acts in Title IX cover responding and reporting sex-based discrimination and harassment in any federally funded school or workplace.

The current Title IX, Act 106.44 (a), regulations do not require persons to report any sex-based hostile environments occurring outside their education program or activity, or outside of the United States.

Title IX proposed Act 106.44 (a) covers responding to sex discrimination. Education programs or federally-funded activities are currently required by Title IX to be free from sex-based discrimination at all times. This requirement proposes regulations requiring the reporter to take prompt and effective action to end any prohibited sex discrimination.

Currently, Act 106.30 and 106.44(a) state sexual harassment can only be reported if there is “actual knowledge” of the harassment.

Title IX proposed Act 106.44 (c) requires persons to notify a Title IX coordinator if sex-based discrimination occurs. Through this, coordinators can promptly learn about and take action against any sex-based discrimination. All employees, including those at an elementary, secondary or postsecondary school, must report sex-based discrimination to a Title IX coordinator.

In Title IX proposed Acts 106.2, 106.8 (d), 106.44 (a) - (e), those who report sex-based discrimination have respected complaint autonomy. This means decision-makers will be trained to report clear and accurate information to a Title IX coordinator, notify the Title IX coordinator of possible sex-based discrimination, contact legal representatives and know how to initiate a sex-based discrimination report.

The current Title IX, Act 106.30 only allows the Title IX coordinator to file complaints of sex-based discrimination. Students and employees are not permitted to file reports.

Title IX proposed Act 106.44 (f) - (g) details the steps a Title IX coordinator should take upon being notified about possible sex-based discrimination. The coordinator will first look over the complaint and respond appropriately. Then, the coordinator will notify the person who filed the complaint of the victim’s Title IX procedures and explain the informal resolution process. The coordinator will offer support to the victim and the reporter and take any other appropriate steps. The coordinator will ensure sex discrimination will not reoccur in the victim’s education program or activity.

Under the current regulations, complaints are only filed and remedies provided when determined sex-based discrimination occurred.

Title IX proposed Act 106.45 covers how complaints are filed under the new Title IX provisions. Previously, Title IX regulations have required a coordinator to publish complaints, follow through with procedures and provide prompt and equitable resolutions. Under the proposed provisions, reporters and victims will have impartial treatment, and coordinators, investigators and respondents will be unbiased. Decisionmakers can be the investigator or the coordinator and make an unbiased decision based on the hearing. The changes ensure no one is responsible for the filed complaints until all complaints and procedures are complete.

The current regulations in this Act include specific requirements for complaints and procedures.

Title IX proposed Act 106.46 includes additional requirements for reporting sex-based discrimination. These requirements include the postsecondary institution’s prompt and unbiased procedures for complaints of sex-based discrimination. There must be a written record of allegations, dismissals, delays, meetings, interviews and hearings. The new regulations require each party to have an advisor present at any meeting or proceeding, and all evidence being used in the proceedings must be available to both parties.

In the proposed Act, to ensure the credibility of both parties, there will be a decision maker and advisor present, asking relevant questions during the meeting or procedure. Under the act, any questions or harassment of the questioned party are not permitted, and all parties will have the opportunity to appeal based on new evidence, bias or procedural irregularity.

The current regulations include many of these requirements, but only for complaints about sexual harassment.

Forms of resolution and retaliation

The proposed changes to Title IX will allow informal resolutions to be filed on sexual harassment without being in a formal setting. Retaliation covers intimidation against those filing a Title IX complaint and is clearly defined in the new provisions.

Title IX proposed Act 106.44 (k) covers informal resolution. Mitten said an informal resolution is a type of negotiated resolution. Through an informal resolution, both parties agree to a resolution and formalize the resolution in writing even without a formal resolution.

Informal resolution will be voluntary for victims and is not permitted in cases where an employee is accused of sex discrimination against a student.

The current regulations permit informal resolution only if there is a filed formal complaint on sexual harassment.

Title IX proposed Acts 106.2, 106.71 covers retaliation. Retaliation is defined as “intimidation, threats, coercion or discrimination against anyone filing a Title IX complaint.” Retaliation of all types is prohibited, including peer and employee retaliation.

The current regulations under Act 106.71 prohibit retaliation but do not include definitions of retaliation.

SEMO Network Against Sexual Violence (NASV) executive director Kendra Eads said clear protections against retaliation will help people come forward.

“[This Act] will make sure schools cannot intimidate, threaten, coerce or discriminate against someone because they made a complaint or participated in a Title IX procedural process. Schools will have more support and tools to help those who have been victimized come forward without the fear of retaliation,” Eads said.

Pregnancy and Gender Identity

The new provisions on pregnancy will clarify changes to Title IX’s basis on treating parents differently on the basis of sex and status. Discrimination on gender identity will be a new provision added to Title IX, if passed.

Title IX proposed Acts 106.2, 106.21 (c), 106.40, 106.57 focus on discrimination based on pregnancy or related conditions. Protection from this act for students and employees includes the provision of reasonable accommodations and break time, and lactation spaces for students and employees. These changes modernize and clarify Title IX’s longstanding prohibition against treating parents differently on the basis of sex and parental status. Any discrimination under these definitions is to be immediately reported to the Title IX coordinator.

Title IX proposed Acts 106.10, 106.31 (a) (2), 106.41 (b) (2) analyze discrimination based on sexual orientation, gender identity and sex characteristics. The Acts will prohibit any discrimination based on sex to cause more than minimal harm. Prohibited regulations include policies and practices preventing students from participating in an education program or activity consistent with their gender identity. These rules will not apply in situations where practices of “traditionally single-sex postsecondary institutions or religious exemptions by Title IX.” There will be separate rules for addressing students’ participation on a particular male or female athletic team.

SEMO LGBTQ+ Center graduate assistant Tristen Simmonds said the new Acts expand on what sex discrimination and discrimination against different sexual orientations and gender identities entails. She said the Acts will provide LGBTQ+ students with greater protections.

“I read about transgender children being capped off gender-affirming sports teams, not being allowed in certain classrooms or allowed to participate in certain activities. That causes harm, because it teaches you that who you are is not good and are not allowed to be with other people,” Simmonds said.

For the full proposed provisions of Title IX, visit the Department of Education's website.