Offense Definitions (Response 8/13/2020)
This question regards the per se assumption that OCR is making with respect to domestic violence, dating violence, and stalking as forms of sexual harassment. All three of these behaviors, while rare, can have manifestations that are not based on sex. Does OCR still expect all manifestations of these behaviors to be addressed under Title IX even if a particular incident manifestly is not sex-based? Further, is it OCR’s position that grabbing someone on the buttocks, while could be a forcible fondling, is a form of sex discrimination?
In the preamble to the new Title IX Rule, at p. 427, the Department notes: “We have revised the § 106.30 definition of sexual harassment … by moving the clause ‘on the basis of sex’ from the second prong to the introductory sentence of the entire definition to align with Title IX’s focus on discrimination ‘on the basis of sex’ for all conduct that constitutes sexual harassment[.]”
On page 553 of the preamble to the Rule, the Department notes that “Title IX, 20 U.S.C. 1681(a), expressly prohibits discrimination ‘on the basis of sex,’ which is why the Department incorporates the phrase ‘on the basis of sex’ in the definition of sexual harassment in § 106.30.”
The Department also states on pages 443-44 that:
whether conduct is “on the basis of sex” does not require probing the subjective motive of the respondent (e.g., whether a respondent subjectively targeted a complainant because of the complainant’s or the respondent’s actual or perceived sex, as opposed to because of anger or romantic feelings). Where conduct is sexual in nature, or where conduct references one sex or another, that suffices to constitute conduct “on the basis of sex.” In Gebser and again in Davis, the Supreme Court accepted sexual harassment as a form of sex discrimination without inquiring into the subjective motive of the perpetrator (a teacher in Gebser and a student in Davis). The Department follows the Supreme Court’s approach in interpreting conduct “on the basis of sex” to include conduct of a sexual nature, or conduct referencing or aimed at a particular sex.
(internal footnotes omitted). With respect to your question, an act of fondling based on sex and considered to be sexual assault would be covered by Title IX as sex discrimination.
On the other hand, where conduct is not sexual in nature, and not based on sex, it is not covered by Title IX. Additionally, on p. 534, fn. 732, the preamble to the Title IX Rule states the following:
Stalking may not always be “on the basis of sex” (for example when a student stalks an athlete due to celebrity worship rather than sex), but when stalking is ‘on the basis of sex’ (for example, when the stalker desires to date the victim) stalking constitutes “sexual harassment” under § 106.30. Stalking that does not constitute sexual harassment because it is not “on the basis of sex” may be prohibited and addressed under a recipient’s non-Title IX codes of conduct.