Title IX protects transgender students, federal agency says

WASHINGTON -- The U.S. Department of Education today made it clear that the federal Title IX law prohibits discrimination against transgender students.

The agency issued guidance clarifying the law via the department’s Office for Civil Rights which says "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."

"This announcement is a breakthrough for transgender students, who too often face hostility at school and refusal by school officials to accept them for who they truly are," said Harper Jean Tobin, director of policy with the National Center for Transgender Equality. "It is now clearer than ever that schools nationwide are responsible for ensuring that transgender students are respected and safe, and students can seek protection from the Department of Education and the courts if schools fail to do so."

Sarah Warbelow, legal director for the Human Rights Campaign, said HRC welcomes the clarification.

“Every student has a fundamental right to go to school in a safe learning environment that respects who they are as a person," Warbelow said. “We thank the Department of Education for doing the right thing and standing with transgender and gender non-conforming students who deserve nothing less than a safe learning environment free of discrimination.”

This historic statement on gender identity is embedded in a larger guidance document on the responsibilities of schools to prevent and respond to sexual violence against any student-part of a package of guidance and resources announced by the Obama Administration today to address this widespread problem. Also being launched is a new website, NotAlone.gov, collecting resources for students and schools and reporting settlements with schools related to sexual violence on campus.

Recent research indicates that 80% of transgender students feel unsafe at school because of who they are [GLSEN 2012]. While the guidance does not address specific forms of discrimination against transgender students, recent actions by the Departments of Justice and Education make clear that schools must provide equal access to all school facilities and programs consistent with a student's gender identity.

A 2013 federal settlement with the Arcadia, California school district, on behalf of a transgender boy excluded from school restrooms and field trip accommodations, requires school officials to treat the student as male for all purposes. Earlier this month, the Department of Justice issued guidance stating the nondiscrimination based on gender identity requires domestic violence shelters and other grantees under the Violence Against Women ACT (VAWA) to provide equal access consistent with a person's gender identity.

"Sexual violence in schools is shockingly common in the U.S. and needs to stop," NCTE executive director Mara Keisling said. "That the Federal Government is addressing sexual violence is so important. And it is also important, and honestly a relief, that the Department of Education is clarifying Title IX in a way that will make schools safer for transgender students."

While the Department of Education took the opportunity of issuing the sexual violence guidance to also clarify that transgender students are protected under Title IX, this protection is not limited to the context of physical or sexual violence and extends to all forms of discrimination in education. NCTE has long pressed for this guidance along with other LGBT advocates, and now urges the Department of Education to issue further detailed guidance on the rights of transgender students.

To ensure compliance with Title IX, NCTE urges schools to use our Model School District Policy on Transgender and Gender Non-Conforming Students, developed by NCTE and our partners at GLSEN, to update their own policies. Students or anyone aware of discrimination based on gender identity can file a complaint with the Department of Education.

HRC said the need for protections for transgender students is clear. 78% of transgender children in grades K-12 reported being harassed in school, 35% physically assaulted, and 12% sexually assaulted, according to a 2011 report from the National Center for Transgender Equality and the National Gay and Lesbian Task Force. According to “Growing Up LGBT in America,” HRC Foundation’s groundbreaking survey of more than 10,000 LGBT youth, more than four in 10 (42%) gender-expansive youth report “frequently” or “often” being called names involving anti-gay slurs and 40% report being excluded by peers “frequently” or “often;” and more than half of gender-expansive youth reported “never participating” in the majority of activities listed in the survey (e.g., sports, church/religious youth groups and service organizations) out of fear of discrimination.

The Human Rights Campaign has long urged the Department of Education to make clear that transgender and gender non-conforming students are protected under Title IX. This clarification from the Department of Education will greatly increase the potential for transgender and gender non-conforming students of all ages to be safe at school, to stay in school, and to succeed academically.

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