Updated Title IX guidance released today by the U.S. Department of Education clarifies that the civil rights law’s protection extends to all students, regardless of sexual orientation or gender identity.
The American Civil Liberties Union praised the inclusion of transgender students in the new guidance, which came in the form of a question-and-answer update to a 2011 “Dear Colleague” letter. But the organization continues to call on the federal agency to release additional guidance that clarifies how schools should address unique issues related to transgender youth.
“This guidance is crystal clear and leaves no room for uncertainty on the part of schools regarding their legal obligation to protect transgender students from discrimination,” Ian Thompson, an ACLU legislative representative, said in a statement. “The Office for Civil Rights must now take the next step and issue comprehensive guidance on Title IX and transgender students.”
The education department’s Office of Civil Rights previously released a 2010 “Dear Colleague” letter that addressed schools’ obligations to protect transgender and gay students from bullying under Title IX. The updated guidance relates to sexual assault and harrassment. Here’s what the updated guidance actually says about transgender students:
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 ..."
The guidance goes on to say that schools are obligated to “respond appropriately” to complaints of sexual violence or harrassment “regardless of the sex or sexes of the parties involved.”
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."
The guidance urges schools to provide appropriate training about “working with LGBT and gender-nonconforming students and same-sex sexual violence” to staff members and board members who deal with and investigate student complaints of sexual violence.
While the updated guidance has received some praise, it doesn’t go as far as many transgender youth advocacy groups would like in explicitly outlining how schools must accomodate the gender identities of students. I’ve written previously about a transgender student suing her school when administrators refused to let her use girls’ restrooms because she was born a boy. In January, a new California law went into effect that allows transgender students to use single-sex facilities and join sex-segregated teams that match their gender identities. Supporters of that law have pushed for federal guidance that addresses such issues.
A version of this news article first appeared in the Rules for Engagement blog.