Title IX Risk and Legal

By: Harold E. Johnson, Stephanie P. Karn & James Shewey

Title IX, enacted as part of the Education Amendments of 1972, is a federal civil rights law that prohibits sex-based discrimination in any education program or activity receiving federal financial assistance. Its primary objective is to ensure that no individual is excluded from participation in, denied the benefits of, or subjected to discrimination under any educational program on the basis of sex.

In April 2024, the U.S. Department of Education under the Biden administration issued a Final Rule expanding Title IX's scope to include protections against discrimination based on sexual orientation and gender identity. This rule aimed to address sex-based harassment, including sexual violence, and ensure that LGBTQ+ students received equal protection under the law. The regulations, which were set to become effective on August 1, 2024, marked a significant shift in how educational institutions were required to address issues of sexual harassment and discrimination.

However, these expanded protections faced immediate legal challenges. Several Republican-led states filed lawsuits arguing that the Department of Education had overstepped its authority and that the new regulations infringed upon states' rights and individual freedoms, while also impermissibly expanding the definitions of both discrimination on the basis of sex and sexual harassment.  In response, federal courts issued injunctions preventing the enforcement of the new Title IX rules in multiple states, leading to a fragmented legal landscape.

On January 9, 2025, Chief Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky vacated the Biden administration's Title IX rule nationwide. Judge Reeves ruled that the Department of Education exceeded its constitutional authority by redefining "sex" to include gender identity and sexual orientation. He also cited violations of the First Amendment, particularly concerning compelled speech related to the use of gender-aligned pronouns, while also deeming the rule "arbitrary and capricious."

The ruling has been met with mixed reactions: civil rights advocates and LGBTQ+ organizations express concern over the potential rollback of protections for vulnerable students, while supporters of the rule view the decision as a restoration of the original intent of Title IX.

For years, claims related to Title IX and reverse Title IX claims have impacted the insurance liability landscape. While there will be differing opinions on this decision, from an insurance and risk perspective, having one consistent approach and clarity for Title IX coordinators should reduce the risk of lawsuits.

The recent injunction does not mandate that institutions tailor their policies to fit the 2020 Title IX regulations. However, as a result of the injunction, the 2020 regulations supply the standard that colleges and universities must meet when addressing sexual assault and sexual harassment in their education programs. Most institutions implemented changes to their Title IX policies in anticipation of the 2024 Final Rule. Many of those changes may be permissible under the 2020 regulations, and thus, it may not be necessary for institutions to completely revert to their prior Title IX policies. Schools that have questions or ambiguities regarding the risks associated with various policy provisions in the wake of the injunction should consult counsel for guidance.