Published on: September 28, 2026
An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
Under the 2020 Title IX regulations, two operative concepts help to assess the appropriateness of sexual conduct: consent and welcomeness. This Tip of the Week discusses the differences and intersections of these concepts, when to apply each, and how to interpret them accurately, in context.
As many of our readers know, the 2020 Title IX regulations use sexual harassment as the umbrella construct for several forms of prohibited conduct. Amongst the required elements, unwelcomeness is an essential element of sexual harassment. Although the regulations do not define unwelcomeness, the preamble explains that unwelcomeness is a subjective standard, assessed from the complainant’s perspective. That interpretation, however, creates an illogical and unworkable construct for practitioners. If unwelcomeness is established simply because a complainant reports or later testifies that the conduct was not welcome at the time, this element effectively becomes self-proving. There can be no such thing, lest the element be meaningless, because every complainant says the conduct was unwelcome. The absurdity of this formulation is crystal clear if you were to apply this standard to sexual assault. In complaints where the complainant asserts the conduct was unwelcome (and there are no other indicia of consent), then the conduct is sexual assault because the complainant says it is.
Where consent and unwelcomeness are two sides of the same coin (they can be, but sometimes are not, see below), then the expression of non-consent by the complainant after-the-fact would prove the offense of sexual assault. If that is not logical to you in the context of sexual assault, then a 100% subjective interpretation of unwelcomeness cannot be logical in the context of sexual harassment either. Such a standard could support a finding of unwelcomeness based solely on a complainant’s retrospective characterization of the conduct, even where relevant evidence reflects active and voluntary participation at the time the conduct occurred.
Rather than blur consent and unwelcomeness entirely, it is worth parsing them to understand their similarities and differences. Conceptually, unwelcomeness usually has both inward and outward considerations. The law cares what a complainant’s inner sense of the conduct is, as well as their outward expression. This is less so with consent, which is primarily rooted in outward expression. We assess consent by asking, “What complainant words or actions gave the respondent permission for the sexual activity that took place?” We look to the respondent’s reasonable understanding of the complainant’s expression of consent. Would a reasonable person in the respondent’s shoes interpret the complainant’s actions as permission for sexual activity? If so, the conduct is consensual. If not, it is not, and the respondent has transgressed.
In a consent analysis, the complainant’s inner dialogue doesn’t matter if their outward manifestation is reasonably taken to indicate consent. With unwelcomeness, the preamble to the 2020 Title IX regulations tells us the complainant’s inner dialogue matters. If they do not want or welcome the conduct, but their outward expression might show welcomeness, we look to the surrounding context—such as power differentials, coercion, and the complainant’s freedom to act—for indicators of whether those outward expressions genuinely reflect that the conduct was welcome. We do this in consent analysis to an extent as well, when we ask whether a person’s words or actions reasonably communicated consent and whether circumstances such as coercion, force, or incapacitation undermined the validity of that consent. That subjective sense is more controlling in unwelcomeness analysis, whereas in consent analysis, we are looking to see if anything so undermines consent as to invalidate it.
When considering burdens and burden-shifting, this really matters. With sexual harassment allegations, we start from the premise that the conduct is unwelcome, because the complaint says it was. With sexual assault, we are constrained to start the policy analysis from the premise that the conduct was consensual, and then only find non-consent when the preponderance of the evidence shows the act was more likely non-consensual than consensual. Analysis starts with the premise of consent because the regulations state clearly that practitioners must presume the respondent is not responsible unless and until the preponderance of the evidence proves otherwise. Thus, while the regulations explicitly place the burden of proof on institutions, the “burden” in sexual harassment is functionally on the respondent to show welcomeness but is not on the sexual assault respondent to show consent. The respondent may decline to offer testimony of any kind, and if the available evidence cannot show non-consent, the respondent must be found not responsible for the offense.
This may have many of you scratching your heads. How can unwelcomeness be self-proving when the regulations also say the respondent is entitled to a presumption of non-responsibility? Well, one conclusion is that the Office for Civil Rights (OCR) didn’t know the implications of what it was writing when it wrote the regulations. Government lawyers are not Title IX administrators. They don’t know how this rubber meets the road. Another lens of analysis is to parse the layers of legality. The section of the regulations that imposes the presumption of non-responsibility is black-letter regulation. The section that tells practitioners that unwelcomeness is 100% subjective is preamble and does not have the force and effect of law. Thus, the presumption of non-responsibility in the actual regulation legally trumps the suggestion of subjectivity in the preamble. That’s the view ATIXA takes in its analysis.
We know the preamble indicates how OCR will enforce Title IX, but that does not mean that practitioners are bound to follow the letter of the preamble, especially where the preamble and regulatory language potentially conflict. That’s when you call your legal counsel.
ATIXA’s interpretation isn’t binding on practitioners, it is just ATIXA sharing its take on a complex question. For that reason, ATIXA treats unwelcomeness as akin to a rebuttable presumption. The complainant asserts conduct is unwelcome, and the Title IX decision-maker can assume that it is, subjectively, unless and until objective evidence establishes (by the preponderance of the evidence) that the conduct was actually welcome, the complainant was free to act, and their later expression of unwelcomeness is not consistent with what was expressed at the time of the interaction(s) in question.
If evidence of welcomeness is not found, then the complainant’s subjective sense rules the question, and the conduct is unwelcome. If evidence of welcomeness is offered to put unwelcomeness into serious question, the decision-maker must be free to find the conduct was unwelcome despite a complainant’s assertion to the contrary. There can be no self-proving offense elements, as our contrast with consent above clearly shows above.
This lens also ratifies another important distinction: what is unwanted versus what is unwelcome. These terms are not synonyms, though most practitioners seem to treat them as if they are. If you fully subscribe to the preamble, then yes, they mean exactly the same thing. But when you consider it, unwanted has an agency to it versus the passivity of unwelcomeness. If you don’t want something, you show it. If you don’t welcome something, it’s because your internal sense of the conduct is of something you would prefer to avoid (regardless of your outward manifestation of that preference). Practitioners can decide for themselves whether these words have the same or different import but are cautioned not to carelessly substitute unwanted for unwelcome, given their inherently different meanings and the implications that carries for ideas like resistance, force, and coercion.
Now to the question of when consent is and is not like unwelcomeness. Much of Title IX prohibited behavior analysis is rooted in art rather than science. Bright lines are the exception rather than the rule. So, ATIXA can’t make it simple by saying that consent and unwelcomeness are always the same, or always not the same. Sometimes they intersect, and sometimes they diverge.
Take this example of a statement from a recent sexual assault complainant interview:
I know that I’d thought about it before; that I thought that maybe I could have sex with respondent and it would be fine, but it was just in that moment I didn’t really want to. I feel like I had already made the expectation for myself that I would be okay with doing it. And I feel like over the time of hanging out with respondent and having other sexual relations with respondent, that normally people sort of escalate to penetrative sex, so I feel like respondent was expecting it. And I had sort of told myself it was okay, so I just felt like it had to be okay and I sort of had to say yes, even though I didn’t necessarily want to.
Give the complainant credit for acknowledging the ambiguity of a complex fact pattern. Seeing this statement really brings the contrast between consent and unwelcomeness into sharp relief. Did the complainant consent? Yes. Did the complainant nevertheless experience the conduct as unwelcome? Also, yes. That tension illustrates why the applicable standard matters.
When the alleged conduct is physical, we charge with sexual assault, a sub-offense of sexual harassment. If the broader sexual harassment unwelcomeness standard were applied, the complainant’s assertion that the conduct was unwelcome would establish a presumption of unwelcomeness. But here, the complainant also acknowledges consenting to the conduct. That evidence of consent rebuts the presumption because the complainant outwardly communicated agreement to the very conduct later described as unwelcome. In situations like this, consent establishes welcomeness. They are perhaps not synonyms, but in this context, evidence of consent establishes that the conduct was welcome.
You could argue that practitioners know not to apply the sexual harassment unwelcomeness standard to a sexual assault allegation because the regulations tell us not to. In practice, schools and colleges vary on their adherence to the regulations on this point, and we often see charges of both sexual harassment and sexual assault for the same act, though that is unnecessarily overlapping. However, when an assault happens in a residence hall, to a residential complainant, schools must apply the Fair Housing Act (FHA), not just Title IX. And the Department of Housing and Urban Development (HUD) regulations and case law apply a welcomeness standard to such alleged sexual assaults, not a consent standard. So, the distinctions ATIXA is highlighting here are quite salient. HUD doesn’t define welcomeness, so how should practitioners look at it? Under FHA, when sexual assault is charged, welcomeness should be interpreted like consent; otherwise, you’d have many self-proving allegations that are not sexual assault under Title IX, but are FHA sex discrimination, which is an illogical result. When the allegations involve sexual harassment (not assault), welcomeness under FHA can be interpreted the same way we approach welcomeness under Title IX, as if a rebuttable presumption applies. When the preponderance of the evidence shows that the conduct was more likely welcome than not, the evidence is sufficient to rebut an assertion of unwelcomeness.
Key Takeaways for Title IX Practitioners
- When sexual conduct is physical, charge with sexual assault, not sexual harassment. Proof of assault will automatically prove sexual harassment under the regulations, and a separate analysis of the elements of the sexual harassment definition is not necessary.
- When the conduct is purely verbal or otherwise non-physical, apply the sexual harassment definition (unless another sub-offense is a better fit, in which case, the preamble says to charge the sub-offense only) and assess unwelcomeness as one of the elements of proof.
- Distinguish unwelcome from unwanted from non-consensual. They each have different meanings.
- Understand that in most assault-based contexts, finding non-consent also establishes unwelcomeness.
- Confer with legal counsel and consider whether unwelcomeness in sexual harassment analysis should be treated as purely subjective, as the preamble suggests. Strong evidence of welcomeness should remain relevant to the analysis. Otherwise, a purely subjective standard may be vulnerable to a bad-faith complaint.
To put the last bullet into context, imagine a college employment situation where a supervisee wants their supervisor’s job, and as part of an effort to create grounds for the supervisor’s removal, the supervisee intentionally initiates and encourages sexualized banter in the workplace with the supervisor. The supervisor reciprocates, and the supervisee later alleges the supervisor’s conduct constituted unwelcome sexual harassment. Assume the evidence establishes the supervisee’s bad-faith motive and intentional participation in creating the interactions. If the supervisee’s subsequent assertion that the conduct was subjectively unwelcome is sufficient to establish unwelcomeness, the decision-maker would have no meaningful way to account for substantial evidence that the supervisee intentionally initiated, encouraged, and participated in the conduct. If the other elements of the offense are met, the subjective standard could therefore produce a finding of responsibility despite compelling evidence of welcomeness.
ATIXA never advocates for practitioners to ignore federal regulations. However, where those regulations are debatable in meaning or application, or where they are illogical or conflicting, we have to interpret them logically and meaningfully. This Tip of the Week has attempted to do just that on the important question of how to integrate and synthesize considerations related to welcomeness and consent when they sit side-by-side.
Want help navigating how consent, welcomeness, and related standards apply in policy and practice? TNG Consulting helps schools and institutions translate complex Title IX requirements into clear, defensible approaches.
Contact inquiry@tngconsulting.com for custom guidance.