US Awaits Substantial Changes to Title IX Regulations – Will They Apply to You?

May 15, 2023

Despite popular belief that Title IX applies only to higher education institutions, the regulations interpreting Title IX—and court decisions analyzing and applying those regulations—apply the statute much more broadly. This means that private institutions, organizations, and/or companies not traditionally viewed as educational institutions, could be covered by Title IX. With the US Department of Education’s Office for Civil Rights (OCR) expected to publish substantial changes to the Title IX regulations this month, now is the time to ensure a full understanding of Title IX’s requirements. 


Title IX was designed to eliminate sex-based discrimination (including harassment and violence) in any education program or activity that receives funding from the federal government. This includes “any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient that receives Federal financial assistance.”


To determine if your institution, organization, or corporation is covered by Title IX, consider the following questions:

  • Does any part of your institution, organization, or corporation receive federal funding, such as Medicare/Medicaid funding or research grants?
  • Is your institution, organization, or corporation principally engaged in the business of providing education, healthcare, housing, social services, or parks and recreation?
  • Does your institution, organization, or corporation have a mission that is, at least in part, educational?
  • Do you offer a program or activity that could be considered educational, such as a summer camp, a professional or vocational training clinic, a counseling/guidance program, or a local community course?

In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools, Title IX applies to “all of the operations” of the following kinds of entities, “any part of which” is extended federal funding:

  • State or local governments
  • Entire corporations, partnerships, or other private organizations, and sole proprietorships if assistance is extended to them “as a whole” or they’re principally engaged in the business of providing education, healthcare, housing, social services, or parks and recreation
  • Entire plants or other “comparable, geographically separate” facilities in the case of “any other” corporation, partnership, private organization, or sole proprietorship
  • Any other entity established by two or more entities covered by Title IX

OCR and federal courts broadly interpret Title IX’s provisions regarding coverage, particularly how “education program or activity” is defined and how the federal funding requirement is applied. Organizations that receive any kind of federal funding and have a program or activity that is, at least in part, educational would benefit from a deeper analysis to ensure whether they are covered by Title IX.

Education Program or Activity

In recent years, courts have broadly interpreted what qualifies as an “education program or activity” under Title IX.

For example, in 2017, the US Court of Appeals for the Third Circuit found that Title IX applied to a private teaching hospital that accepts Medicare payments and is affiliated with a university’s medical school.[1] Relying on authority from other Circuits and federal agencies that have applied Title IX beyond traditional educational institutions, the court held that Title IX applies to any program or activity that has “features such that one could reasonably consider its mission to be, at least in part, educational.”

In doing so, the court highlighted that Title IX is not limited to entities “principally engaged in the business of providing education,” but instead “leaves space aplenty for a variety of entities irrespective of what they’re ‘principally’ engaged in—for example, state and local government instrumentalities, private entities extended assistance as a whole, other private entities’ entire plants or separate facilities, and any entity established by two or more covered entities.”[2]

In reaching this decision, the Third Circuit provided a helpful, yet non-exhaustive list, of features that support deeming a “program or activity” educational and, thus, potentially covered by Title IX:

  • The program is incrementally structured through a particular course of study or training, whether full or part-time.
  • The program allows participants to earn a degree or diploma, qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training.
  • The program provides instructors, examinations, an evaluation process or grades, or accepts tuition.
  • The entities offering, accrediting, or otherwise regulating a program present it as educational in nature.

Federal Funding

Courts also broadly apply the federal funding requirement of Title IX. Many federal courts, including the Third Circuit, held that whether an institution, entity, organization, and/or corporation receives federal financial assistance, to be covered by Title IX is determined by reference to the “entire entity or whole organization.”[3]

Therefore, even if only one arm, division, program, or entity of a broader institution, organization, or company receives federal funding, the entire institution, organization, or company will be deemed to have received federal funding for purposes of analyzing Title IX coverage.[4]

In fact, courts have found that an entity that does not directly receive federal funding may nonetheless be covered where the entity exercises controlling authority over a federally funded program.[5]


Title IX requires multiple administrative measures and non-compliance can subject your organization to costly lawsuits and potential penalties, including the loss of federal funds. It is essential for your organization to take the time to implement Title IX requirements to protect it against liability.

Entities covered by Title IX are required, among other things, to (1) adopt and disseminate a notice of nondiscrimination; (2) designate a Title IX coordinator who will be responsible for overseeing and coordinating Title IX responsibilities; (3) adopt and disseminate grievance procedures governing Title IX complaints; (4) promptly and effectively investigate complaints of sex discrimination; and (5) train employees on Title IX’s requirements, how and to whom to report sex discrimination, how such reports will be responded to, and the complainant’s rights throughout the process.

This month, the OCR will expand the current Title IX regulations to, among other things (1) broaden the definition of “sex-based harassment,” decreasing the threshold for what institutions are required to investigate; (2) include protections for transgender and nonbinary individuals; (3) add protections for pregnant and parenting individuals; and (4) change or remove certain procedural requirements for investigation and resolution of Title IX complaints, such as reverting back to a model that allows the same employee to investigate and resolve Title IX complaints and removing the requirement that the complaint be decided through a live hearing.

Adhering to Title IX’s prohibition on sex-based discrimination and harassment, including its extensive requirements for investigation and resolving such complaints, is important.

Compliance with Title IX’s administrative and procedural requirements is ever changing and can be a challenge for entities that are just coming into coverage. Contact Morgan Lewis with any questions about Title IX coverage or compliance with Title IX.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:

[1] Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 555 (3d Cir. 2017).

[2] Mercy Catholic, 850 F.3d at 555.

[3] Mercy Catholic, 850 F.3d at 557 (“[W]hether a covered program or activity receives ‘Federal financial assistance’ is determined by reference to the ‘entire’ entity or ‘whole’ organization.”); Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir. 1993).

[4] O’Connor v. Davis, 126 F.3d 112, 117 (2d Cir. 1997) (“[C]ourts have consistently interpreted Title IX to mean that if one arm of a university or state agency receives federal funds, the entire entity is subject to Title IX's proscription against sex discrimination.”) (citing Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 271 (6th Cir. 1994)); Zamora v. Unified Gov’t of Wyandotte Cty. & Kan. City, 2019 U.S. Dist. LEXIS 198465, at *43 (D. Kan. Nov. 15, 2019) (holding that Title IX applied to a juvenile detention center because it is a division of an entity that receives federal financial assistance).

[5] Doe v. CVS Pharm., Inc., 2022 U.S. Dist. LEXIS 139684, at *36-37 (N.D. Cal. Aug. 5, 2022); Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 80 F. Supp. 2d 729, 735 (W.D. Mich. 2000) (ruling that “any entity that exercises controlling authority over a federally funded program is subject to Title IX, regardless of whether that entity is itself a recipient of federal aid”).