A closer look at new Title IX regulations

The core of Title IX of the Education Amendments of 1972 consists of 37 words that prohibit sex discrimination in any educational program or activity that receives any federal funding.

Although Title IX itself has remained constant, in recent years its interpretation has been amended, altered, and redefined by the federal government and the Supreme Court. Initially, Title IX was known for expanding access to academic institutions and requiring that support for female-dedicated athletics programs equal that of male-dedicated programs, especially at the collegiate level. In 1992, Title IX’s protections were interpreted to encompass sexual harassment, including sexual assault. And since then, the Department of Education has defined — and redefined — sexual harassment and misconduct and described how academic institutions should respond, with two significant changes to guidance and regulation in 2011 and 2020, respectively. Last month, the Department of Education once again issued regulatory changes to Title IX.

To better understand the latest changes to the regulations, which will take effect Aug. 1, the Gazette sat down with University Title IX Coordinator Nicole Merhill, who is also director of the Office for Gender Equity (OGE). OGE is currently consulting with various stakeholders across the University to explore the necessary revision to University policies, procedures, and training for students, staff, and faculty to ensure Harvard remains in compliance with the latest changes to the Title IX regulations. The interview has been edited for clarity and length.

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What is your overall impression of the new regulations?

There are many changes, from definitions to scope of conduct, to applicability of sex discrimination, to coverage. It’s not so much an expansion of what was covered, but really a clarification on the application of Title IX.

When I’ve heard people talk about the new regulations, they talk about a “rollback” to the pre-2020 regulations and prior. This is not a rollback or reverting to what the regulations used to be five years ago. It’s more of a slide and a pivot.

For example, prior to the 2020 regulation change, the definition of what constituted sexual harassment was, in part, unwelcome conduct on the basis of sex that was severe, persistent, or pervasive, based on the totality of the circumstances.

In 2020, the definition for what constitutes sexual harassment shifted, in part, to unwelcome conduct on the basis of sex that was severe, pervasive, and objectively offensive.

The new definition for sex-based harassment includes a definition for hostile environment harassment, which is unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is severe or pervasive. We are not returning to the pre-2020 standard of severe, persistent, or pervasive.

It is essential that people understand that the requirements throughout these regulations are not simply rolling back to how things were done before 2020. They’re different.

How will protections for gay, transgender, and non-binary people be affected?

The new regulations expand the definition of what qualifies as discrimination on the basis of sex. We knew that was this coming due to the Supreme Court’s 2020 ruling in Bostock v. Clayton County, Ga., which ensures that discrimination on the basis of sexual orientation or gender identity is included under Title IX on the basis of sex discrimination. So, this was already in effect, but now we have it actually written into the regulations. And that’s really important. The regulations now clarify that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

Are there different protections for pregnant students?

Pregnancy or related conditions always have been part of the Title IX regulations, and discrimination based on pregnancy and related conditions has always been prohibited. This set of regulations, though, really strengthens the requirements and increases our obligations, such as providing students who are pregnant with information about the University’s obligations, reasonable accommodations, voluntary leaves of absence, and lactation spaces. So, it’s another really noteworthy shift.

How have the regulations changed when it comes to the grievance process for sexual harassment complaints?

There are some significant changes in the grievance process. Under the 2020 regulations, there must be a hearing, there must be cross-examination, and that cross-examination must take place through personal advisers during a live hearing.

Under the new regulations, there must be a process to assess the credibility of parties and witnesses, including follow-up questions that challenge credibility, but a live hearing is no longer required.

Another big change is the move away from mandatory dismissal. Under the 2020 regulations, if conduct didn’t meet the narrow definition of Title IX sexual harassment, complaints had to be dismissed. Most institutions, including Harvard, created additional policies to address these complaints. With mandatory dismissal now gone, that likely means that many institutions will likely go back to a single policy that encompasses all behaviors within the realm of sex-based harassment.

Are there changes in how complaints are filed?

The 2020 regulations required complaints to be formally made in writing and signed by the person, the complainant. The new regulations define a complaint differently, and they allow for oral complaints. Under these regulations, if a person goes to a faculty member and says, “I experienced sexual harassment by a classmate, and the University should investigate this,” that puts the University on notice and triggers our response obligation, including our obligation to conduct an investigation, as appropriate.

Given these changes, will there be training for faculty and staff navigate to learn how to handle a complaint?

Yes, we are required by the new regulations to annually train all our employees. The good news is we already have systems in place to roll out training for staff and faculty. Faculty and staff should see trainings in their email inbox on the new regulations as well as our policy changes in the coming months.

With all of these changes, is anything staying the same?

Yes. There will be no change in the structure of the Office for Gender Equity, including SHARE, Title IX, and Prevention. These new regulations have broad, sweeping implications, but we have a good team of people working on this.

Our SHARE team will continue to provide a range of support to all community members impacted by harm. These services include trauma-informed counseling, education and support groups, and a 24/7 confidential hotline. OGE’s Strategic Prevention Initiatives team will continue to engage with community stakeholders to expand prevention initiatives, including those focused on creating culture change. Our network of local Title IX Resource Coordinators will continue to serve as the primary point of contact for supportive measures. And the Title IX team within OGE will serve as an additional support service for community members, including via our anonymous disclosure tool, the Resource for Online Anonymous Disclosure.

In addition, the Office for Dispute Resolution will continue to offer impartial, professional investigative processes for students, staff, faculty, postdoctoral parties, and third parties.