LGBT Rights in Education: Recent Victories, But Our Fight Continues
LGBT Rights in Education: Recent Victories, But Our Fight Continues
Since then, OCR entered into a Resolution Agreement requiring the Arcadia, California Unified School District to implement inclusive policies for transgender and GNC students and to grant a male-identified transgender middle school student access to male-gendered sex-specific facilities consistent with his gender identity instead of his biological sex. [9] This Resolution Agreement can be cited as persuasive authority confirming covered school districts’, colleges’ and universities’ obligations under Title IX in future administrative complaints filed with OCR that allege Title IX violations. [10]
Despite this positive trend, discrimination in schools based on sexual orientation and gender identity and expression is still not explicitly prohibited in the text of any federal law. There is also no national OCR policy clarifying schools’ obligations to students who are transgender or gender nonconforming. This means that when students file a lawsuit in court or an administrative complaint with OCR, the schools will likely continue to argue that conduct like refusing to allow a female-identified transgender student to use the women’s restroom is not illegal discrimination. This is another reason why it is so crucial for federal agencies and courts to continue to build a body of positive case law and guidance confirming the scope of existing laws’ application to these students. Until the laws are amended or new LGBT-inclusive laws are finally successfully passed, Title IX is an important tool that advocates can use to advance educational equality for these students.
Here’s the good news: though we need to continue demanding more for our nation’s students, it is now absolutely clear that anti-LGBT discrimination by a covered entity is illegal under Title IX.
Impact of Discrimination on Transgender & GNC Students
When transgender and GNC students are unsupported and exceptionalized, many aspects of the school environment can be harmful. For example, requiring male-identified transgender students to use the female-designated restroom and locker room often creates a daily gauntlet of unacceptance that is not only traumatizing, but exposes those students to discrimination and violence. In a state like New York, where the majority of its primary and secondary schools still have not adopted inclusive policies and its public school students aren’t protected by the state Human Rights Law’s nondiscrimination protections, transgender and GNC students would be virtually unprotected without Title IX.
The physical and emotional toll of such policies and practices that exceptionalize transgender and GNC students or single them out for unequal treatment should not be underestimated. Transgender and GNC students are targeted with physical violence and experience a hostile school environment at an even higher rate than their LGB peers, both nationally [11] and in New York.[12] Transgender and GNC students in grades K-12 surveyed across the United States reported “alarming rates of harassment (78%), physical assault (35%) and sexual violence (12%) . . . and harassment so severe that it led almost one-sixth (15%) to leave a school in K-12 settings or in higher education.” [13] Transgender and GNC students of color are targeted with harassment at even higher rates. [14] This discrimination can cause other tragic consequences. An astronomical 51% of respondents who were harassed or bullied in school reported attempting suicide, compared to 1.6% of the general population.[15]
The broader societal context for transgender and GNC people, including the over 58,000 New Yorkers who identify as transgender, [16] is similarly dire. Anti-transgender discrimination perpetrated in New York State and nationally also causes extreme rates of unemployment and homelessness in the transgender community. [17] Transgender people are nearly 4 times more likely to have annual income under $10,000, are unemployed at double the rate of the general population - 4 times the national rate for transgender people of color. [18] Transgender people who were fired due to anti-transgender discrimination are homeless at 4 times the national rate. [19]
Economic insecurity and homelessness expose transgender people as a vulnerable population that attackers, including the police, target for hate violence. [20] The most recent hate crime data shows the highest number of LGBT murders ever reported, and 40% of the victims were transgender women. [21] In fact, gender identity/expression and sexual orientation are the second-highest motivator for hate crimes - second only to race. [22]
School districts have an unparalleled opportunity and obligation to stem this epidemic by creating an educational environment where discrimination is not tolerated, and that fosters acceptance of human differences and prepares students for the actual diversity of the world.
This is a dynamic time in the LGBT (Lesbian, Gay, Bisexual, Transgender) civil rights movement. As our LGBT communities continue to gain important victories in the fight for marriage equality, we need to celebrate those victories without losing sight of the inequalities that marriage simply cannot solve. For many LGBT people, both in New York and nationwide, discrimination, violence and harassment are a reality lived daily that cannot be ignored. True civil rights advancement means attaining long overdue, explicit federal and state legal protections against discrimination based on sexual orientation and gender identity and expression in the central areas of our lives - such as education, employment and housing.
Continued advancements in education law and policy, particularly for transgender and gender nonconforming (GNC) students, are a critical next step in achieving this type of meaningful and lasting equality.
That is why Empire Justice Center wants to publicly applaud the U.S. Department of Education Office for Civil Rights (OCR) for its recently released written guidelines declaring that Title IX of the Education Amendments of 1972 [1] protects “lesbian, gay, bisexual and transgender students” from sex discrimination. [2] The statement directly from the federal agency charged with enforcing Title IX is particularly impactful because of the sheer scope of this law, which prohibits sex discrimination in any education programs or activities which receive Federal financial assistance. [3]
These OCR guidelines follow a growing federal trend confirming that the “sex” protected status category includes gender identity and expression in both the education and employment contexts. At least 6 federal circuits [4] and another federal agency, the U.S. Equal Employment Opportunity Commission (EEOC), [5] have issued opinions to that effect. Lower New York State courts have made similar rulings when addressing anti-transgender discrimination in public accommodations. [6]
OCR began showing its support for LGBT students publicly as early as 2010 in a “Dear Colleague Letter,” [7] a guidance document designed to clarify schools’ obligations under Title IX. This Dear Colleague Letter states:
Continued advancements in education law and policy, particularly for transgender and gender nonconforming (GNC) students, are a critical next step in achieving this type of meaningful and lasting equality.
That is why Empire Justice Center wants to publicly applaud the U.S. Department of Education Office for Civil Rights (OCR) for its recently released written guidelines declaring that Title IX of the Education Amendments of 1972 [1] protects “lesbian, gay, bisexual and transgender students” from sex discrimination. [2] The statement directly from the federal agency charged with enforcing Title IX is particularly impactful because of the sheer scope of this law, which prohibits sex discrimination in any education programs or activities which receive Federal financial assistance. [3]
These OCR guidelines follow a growing federal trend confirming that the “sex” protected status category includes gender identity and expression in both the education and employment contexts. At least 6 federal circuits [4] and another federal agency, the U.S. Equal Employment Opportunity Commission (EEOC), [5] have issued opinions to that effect. Lower New York State courts have made similar rulings when addressing anti-transgender discrimination in public accommodations. [6]
OCR began showing its support for LGBT students publicly as early as 2010 in a “Dear Colleague Letter,” [7] a guidance document designed to clarify schools’ obligations under Title IX. This Dear Colleague Letter states:
“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. When students are subjected to harassment on the basis of their LGBT status, they may also, . . . be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender‐based harassment.” [8]
Since then, OCR entered into a Resolution Agreement requiring the Arcadia, California Unified School District to implement inclusive policies for transgender and GNC students and to grant a male-identified transgender middle school student access to male-gendered sex-specific facilities consistent with his gender identity instead of his biological sex. [9] This Resolution Agreement can be cited as persuasive authority confirming covered school districts’, colleges’ and universities’ obligations under Title IX in future administrative complaints filed with OCR that allege Title IX violations. [10]
Despite this positive trend, discrimination in schools based on sexual orientation and gender identity and expression is still not explicitly prohibited in the text of any federal law. There is also no national OCR policy clarifying schools’ obligations to students who are transgender or gender nonconforming. This means that when students file a lawsuit in court or an administrative complaint with OCR, the schools will likely continue to argue that conduct like refusing to allow a female-identified transgender student to use the women’s restroom is not illegal discrimination. This is another reason why it is so crucial for federal agencies and courts to continue to build a body of positive case law and guidance confirming the scope of existing laws’ application to these students. Until the laws are amended or new LGBT-inclusive laws are finally successfully passed, Title IX is an important tool that advocates can use to advance educational equality for these students.
Here’s the good news: though we need to continue demanding more for our nation’s students, it is now absolutely clear that anti-LGBT discrimination by a covered entity is illegal under Title IX.
Impact of Discrimination on Transgender & GNC Students
When transgender and GNC students are unsupported and exceptionalized, many aspects of the school environment can be harmful. For example, requiring male-identified transgender students to use the female-designated restroom and locker room often creates a daily gauntlet of unacceptance that is not only traumatizing, but exposes those students to discrimination and violence. In a state like New York, where the majority of its primary and secondary schools still have not adopted inclusive policies and its public school students aren’t protected by the state Human Rights Law’s nondiscrimination protections, transgender and GNC students would be virtually unprotected without Title IX.
The physical and emotional toll of such policies and practices that exceptionalize transgender and GNC students or single them out for unequal treatment should not be underestimated. Transgender and GNC students are targeted with physical violence and experience a hostile school environment at an even higher rate than their LGB peers, both nationally [11] and in New York.[12] Transgender and GNC students in grades K-12 surveyed across the United States reported “alarming rates of harassment (78%), physical assault (35%) and sexual violence (12%) . . . and harassment so severe that it led almost one-sixth (15%) to leave a school in K-12 settings or in higher education.” [13] Transgender and GNC students of color are targeted with harassment at even higher rates. [14] This discrimination can cause other tragic consequences. An astronomical 51% of respondents who were harassed or bullied in school reported attempting suicide, compared to 1.6% of the general population.[15]
The broader societal context for transgender and GNC people, including the over 58,000 New Yorkers who identify as transgender, [16] is similarly dire. Anti-transgender discrimination perpetrated in New York State and nationally also causes extreme rates of unemployment and homelessness in the transgender community. [17] Transgender people are nearly 4 times more likely to have annual income under $10,000, are unemployed at double the rate of the general population - 4 times the national rate for transgender people of color. [18] Transgender people who were fired due to anti-transgender discrimination are homeless at 4 times the national rate. [19]
Economic insecurity and homelessness expose transgender people as a vulnerable population that attackers, including the police, target for hate violence. [20] The most recent hate crime data shows the highest number of LGBT murders ever reported, and 40% of the victims were transgender women. [21] In fact, gender identity/expression and sexual orientation are the second-highest motivator for hate crimes - second only to race. [22]
School districts have an unparalleled opportunity and obligation to stem this epidemic by creating an educational environment where discrimination is not tolerated, and that fosters acceptance of human differences and prepares students for the actual diversity of the world.
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