A large number of LGBTQ students continue to feel unsafe at school due to high rates of discrimination and harassment. Often, schools have discriminatory policies or practices that directly affect LGBTQ students. These may relate to student groups with an LGBTQ focus, an on-campus dress code, the exclusive use of legal names over preferred, school dance policies, and discipline related to public displays of affection. These policies may affect LGBTQ students differently than their straight or cisgender peers as a result of their sexual orientation or gender identity.
Moreover, almost three-quarters of LGBTQ students have reported verbal harassment due to sexual orientation, while more than half have reported verbal harassment for gender expression. Harassment includes cyber-bullying, as well as escalations to physical violence. More than half of affected students do not report violence because they do not believe there will be an effective school response. Consequently, often nothing is done to remedy the matter.
Applicable Federal Laws
Federal civil rights laws do not expressly protect students from discrimination based on their perceived or actual sexual orientation or gender identity. However, the Equal Protection Clause of the Fourteenth Amendment requires public schools and school districts to protect LGBTQ students the same way they would protect any other student. The State must have a rational basis for discriminating against LGBTQ students.
Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination on the basis of sex in federally funded education programs and activities. It applies to public and private elementary schools, secondary schools, school districts, colleges, and universities. However, religious schools can apply for an exemption.
The Department of Education has provided a guideline explaining that the sex discrimination prohibition extends to claims of discrimination based on the actual or perceived sexual orientation or gender identity of a student, as well as failure to comply with stereotypical ideas about gender. The guideline arose from several court decisions and a 2012 EEOC opinion holding that gender identity discrimination is a subset of sex discrimination, which Title VII of the 1964 Civil Rights Act bars. However, the Trump administration appears poised to move away from this viewpoint, weakening or eliminating protections for LGBT students.
In a 2015 district court opinion in California, a judge ruled that discrimination on the basis of sexual orientation is not a separate category of discrimination, but falls under the larger umbrella of sex discrimination. The ruling allowed two female basketball players to proceed with a lawsuit that alleged a university discriminated against them because they were dating and forced them off the school’s basketball team.
Under Title IX, all schools are required to investigate and resolve allegations of discrimination and physical or sexual abuse. All schools that receive federal financial assistance are required to designate an employee to coordinate their Title IX responsibilities and inform all students and employees of the Title IX coordinator’s contact information. Under Title IX, an institution cannot separate, deny benefits to, or exclude a person on the basis of sex, unless they are explicitly authorized to do so under Title IX or the implementing regulations.
Title IX is also meant to protect students from sex-based harassment. This may include name-calling, written statements, or humiliating actions. When harassment is so serious that it interferes with education and is tolerated, encouraged, or ignored by school employees, there may be a Title IX violation. It is also a Title IX violation for a school to retaliate against you because you attempted to stand up for yourself.
Enforcement of Title IX
How is Title IX enforced? You can file a complaint with the United States Department of Education’s Office for Civil Rights or file a lawsuit in federal court. Time limits will apply. You should consult a lawyer about these options, particularly if the behavior is so egregious that you are considering filing a lawsuit.