May 2, 2014
On April 29, 2014, the United States Department of Education (DOE) released guidance that will have a significant impact on ongoing efforts to protect transgender and gender nonconforming students. The guidance, which focused on schools’ obligations to combat sexual assault on campus, explicitly recognized Title IX protects transgender students from discrimination. This is a great development that provides much-needed clarity around the rights of transgender and gender nonconforming students.
Specifically, the guidance states “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.” This development is significant for two reasons. First, the guidance explicitly reiterates DOE’s long-standing position that sex discrimination protections extend to transgender and gender nonconforming students. Second, it signals that DOE is making sure that its guidance is inclusive of the myriad ways that sex discrimination affects transgender and gender nonconforming students, including sexual assault.
Title IX requires schools to address sexual assault and other forms of sex discrimination because failing to do so “limit[s] or den[ies] a student’s ability to participate in or benefit from the school’s educational program.” As noted in the guidance, improper or inadequate responses to complaints of sex discrimination, such as sexual assault, can create a hostile school environment for the target(s) of that discriminatory conduct. This is a particularly dangerous risk for transgender students. As recent a study shows, nearly eighty percent of transgender students feel unsafe at school. School districts perpetuate those feelings by not taking steps to effectively address bullying and harassment as well as failing to treat transgender and gender non-conforming students with dignity and respect. Including transgender and gender nonconforming students within the scope of those protections is consistent with the definition of “sex” increasingly being adopted by the courts and administrative agencies.
This issue has long been a priority for NCLR. Most recently, NCLR filed a complaint on behalf of a transgender student in the Arcadia Unified School District. In that complaint, we argued that by failing to allow the student access to school facilities based on his gender identity, the school district was discriminating on the basis of sex in violation of Title IX. Ultimately, in July 2013, DOE and the Department of Justice (DOJ) agreed and resolved the case in favor of the student. As part of that resolution, the school district was required to treat the student in a manner consistent with his gender identity, revise its policies to prohibit discrimination on the basis of gender identity, and provide training to staff and students regarding the updated policies.
This is a great step forward in the continued effort to achieve equality, and we look forward to continuing to work with DOE as it issues guidance documents on the wide range of education issues that affect all students, including lesbian, gay, bisexual, and transgender students.