Feds state clearly that Title IX protects gender nonconformity

Breaking news!

The Transgender Law Center is praising the U.S. Department of Education for releasing new guidelines yesterday regarding Title IX and sexual violence that make clear Title IX covers gender identity and gender stereotypes. From their website you can read the guidelines or download a .PDF version.

There are so many important lines in this Q and A style document! You will want to download it for future reference if you think you will ever need to go head to toe with a teacher, principal, or school district.

The implications go far beyond particulars of filing complaints about an incident of sexual harassment. Whereas only a few years ago gay, transgender, and gender queer children were told in effect, “This is the way the world works. You just need to accept that fact and adapt to it,” this document presents that message to schools instead.

There are LGBTQ children in our schools. They have all the same rights and protections against discrimination that other students do. This is the way the world works. You just need to accept that fact and adapt to it.

I was startled to discover in following links from this document that back in 2010, the Office of Civil Rights published this letter on bullying that includes some of the same language. In the example provided in which a school was found to violate the civil rights of a gay student who was being harassed, the letter states the school had an obligation to educate “the entire school community on civil rights and expectations of tolerance, specifically as they apply to gender stereotypes. The school also should have taken steps to clearly communicate the message that the school does not tolerate harassment and will be responsive to any information about such conduct.”

There is a bizarre and painful tricky dance in this letter, in which it is OK by federal law to discriminate against people because of their sexual orientation but not because of their sex or gender presentation. (“Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination.”)

I guess this is how the federal government is trying to sneak in protection for children Congress says they cannot protect?

For parents of gender-nonconforming children, this clear interpretation of Title IX is huge. “If students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity,” their civil rights are being violated and schools are required to respond as outlined by the letter. (Punishment of the perpetrator is NOT sufficient; the school’s responsibility is to “eliminate the hostile environment created by the harassment.”)

Here are some excerpts from the Questions and Answers about Title IX and Sexual Violence document published yesterday. Some text is highlighted in happy rainbow colors ’cause that’s how it makes me feel!

Does Title IX protect all students from sexual violence?

Answer: Yes. Title IX protects all students at recipient institutions from sex discrimination, including sexual violence. Any student can experience sexual violence: from elementary to professional school students; male and female students; straight, gay, lesbian, bisexual and transgender students; part-time and full-time students; students with and without disabilities; and students of different races and national origins.

How should a school handle sexual violence complaints in which the complainant and the alleged perpetrator are members of the same sex?

Answer: A school’s obligation to respond appropriately to sexual violence complaints is the same irrespective of the sex or sexes of the parties involved. Title IX protects all students from sexual violence, regardless of the sex of the alleged perpetrator or complainant, including when they are members of the same sex. A school must investigate and resolve allegations of sexual violence involving parties of the same sex using the same procedures and standards that it uses in all complaints involving sexual violence.

Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.

Indeed, lesbian, gay, bisexual, and transgender (LGBT) youth report high rates of sexual harassment and sexual violence. A school should investigate and resolve allegations  of sexual violence regarding LGBT students using the same procedures and standards that it uses in all complaints involving sexual violence. The fact that incidents of sexual violence may be accompanied by anti-gay comments or be partly based on a student’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy those instances of sexual violence.

If a school’s policies related to sexual violence include examples of particular types  of conduct that violate the school’s prohibition on sexual violence, the school should consider including examples of same-sex conduct. In addition, a school should ensure that staff are capable of providing culturally competent counseling to all complainants. Thus, a school should ensure that its counselors and other staff who are responsible for receiving and responding to complaints of sexual violence, including investigators and hearing board members, receive appropriate training about working with LGBT and gender-nonconforming students and same-sex sexual violence. See questions J-1 to J-4 for additional information regarding training.

Gay-straight alliances and similar student-initiated groups can also play an important role in creating safer school environments for LGBT students. On June 14, 2011, the Department issued guidance about the rights of student-initiated groups in public secondary schools under the Equal Access Act. That guidance is available at http://www2.ed.gov/policy/elsec/guid/secletter/110607.html. (By the way, this document reviews the requirement imposed on public secondary schools to allow gay-straight alliances and other groups that focus on issues related to LGBT students, sexual orientation, or gender identity.) 

Does Title IX protect against retaliation?

Yes . . . . Schools should be aware that complaints of sexual violence may be followed by retaliation against the complainant or witnesses by the alleged perpetrator or his or her associates. When a school knows or reasonably should know of possible retaliation by other students or third parties, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. Title IX requires the school to protect the  complainant and witnesses and ensure their safety as necessary. At a minimum, this includes making sure that the complainant and his or her parents, if the complainant is in elementary or secondary school, and witnesses know how to report retaliation by school officials, other students, or third parties by making follow-up inquiries to see if there have been any new incidents or acts of retaliation, and by responding promptly and appropriately to address continuing or new problems. A school should also tell complainants and witnesses that Title IX prohibits retaliation, and that school officials will not only take steps to prevent retaliation, but will also take strong responsive action if it occurs.