If you are confused about whether Title IX applies to LGBTQ students, you are not alone. If you research Title IX, you will find numerous guidelines and opinions related to Title IX protections. However, you must pay close attention to the dates of the documents and whether the opinions or guidelines have been rescinded.
For example, the Department of Education (DOE) and the Justice Department issued a press release in May 2016. They released guidance to help schools ensure that the civil rights of transgender students are protected. However, when you try to review the guidance, you find that it has been formally rescinded by the DOE.
It appears that the protections under Title IX seem to shift according to the changes in political control in Washington.
Under the Obama Administration, Title IX was expanded to include LGBTQ students. However, those expansions were rescinded under the Trump Administration. A new Biden Administration could result in changes in how Title IX and other laws impact the LGTBQ community.
The most recent rollback of Title IX protections for LGBTQ students came within days of the end of the Trump Administration. The DOE’s Office of General Counsel stated that LGBTQ students are not included in the protections under Title IX.
What is Title IX?
Title IX was passed as part of the Education Amendments of 1972. It is a civil rights law. Title IX states no one shall be subject to discrimination or denied the benefits of or participation in an education program on the basis of sex.
Title IX applies to any educational programs or activities that receive federal financial help. Therefore, Title IX should apply to all state and local schools or educational agencies that receive federal funding for programs and activities.
What is the Most Recent Guidance From the DOE on Title IX?
In response to the U.S. Supreme Court ruling in Bostock v. Clayton County, the DOE requested guidance from its Office of General Counsel. The DOE wanted answers to questions related to the decision in Bostock as it relates to Title IX.
In the Bostock decision, the Court ruled that LGBTQ workers are protected under Title VII of the Civil Rights Act of 1964. Title VII protects workplace discrimination based on a person’s sex, religion, race, or national origin. The Supreme Court ruled that “sex” under Title VII included LGBTQ individuals who face discrimination based on their gender identity or sexual orientation.
There were discussions that the ruling could have implications on other laws, including Title IX. Those implications appear to have prompted the memorandum of January 8, 2021.
The memorandum issued by the Office of General Counsel concluded that the term “sex” should be construed to mean biological sex.
By defining the term “sex” to mean male or female, transgender students may not be afforded the same protections under Title IX as other students. There could be some instances in which the DOE could investigate complaints of discrimination based on transgender identity or homosexuality. Still, it is clear that the guidance allows discrimination against LGTBQ students.
What Should Students and Parents Do in the Face of Sex-Based Discrimination in Schools?
Learning about anti-discrimination laws is one of the best ways to protect your legal rights. Taking steps to fight harassment and discrimination begins with knowledge.
Because the laws and guidelines are changing, it can help to talk with a discrimination lawyer about your situation. An attorney can review your situation in light of the current federal and state laws protecting LGBTQ students from harassment, bullying, and discrimination at educational facilities and schools.
You should also review your school’s policies related to sexual harassment and discrimination. Schools should have policies in place for receiving complaints related to discrimination. They should also have policies and rules for investigating complaints.
Protect yourself by keeping detailed notes. Keep copies of all documents related to the matters.
If you cannot resolve the situation through the school, you can file a complaint with the Office of Civil Rights. However, under the current guidance, the OCR may not be helpful if the complaint is related to discrimination based on LGBTQ issues. You can explore the options of filing a lawsuit in civil court against the school.
Sadly, discrimination on the basis of sex is a growing problem in our schools. Until the courts and the federal government step up to stop this discrimination, it is up to parents and students to fight discrimination. Schools and school officials need to be held responsible for violations of a student’s civil rights under Title IX.