Does Title IX Protect Transgender Students in Grades K-12?
The application of Title IX provisions can be challenging to predict and enforce in the current legal environment. This is particularly the case when balancing competing interests involving students who are minors and dealing with relatively untested protections such as the rights afforded to transgender students.
Adding to the complication is the fact that the current presidential administration has proposed new rules that are likely to take effect in a format similar to their proposed version, but these new rules are not yet the law of the land. Parents who want to protect their children and teachers accused of violations often do not know where to turn for answers.
Department of Education Position
The Department of Education’s Office for Civil Rights has clearly stated that they will treat claims involving gender identity and sexual orientation like other claims of sex discrimination that require investigation. This was based on the U.S. Supreme Court decision in Bostock v. Clayton County. Although that case dealt with employment discrimination under Title VII, both courts and regulatory agencies have a long history of extending Title VII interpretation to Title IX provisions.
In addition, the Department has issued reports stating that transgender students were more likely to miss school and report feeling unsafe, and they have issued official guidance to schools explaining how they properly provide support to transgender students. Clearly, the Department believes Title IX protections should apply to transgender students—but how they are or should be applied is the real question.
When Parents Feel the School Could Have Done More
The current laws set forth requirements for schools regarding how they must respond to evidence of or complaints of sexual harassment. While the rules encourage schools to put measures into place to prevent incidents of harassment, schools’ obligations to do so are not clear.
Parents concerned about bullying and other issues may be able to complain that the school has not done enough to address a problem, However, under the current regulations, it can be difficult to legally assert that the school should have done more to prevent bullying in the first place except potentially in jurisdictions where state or local law provides additional requirements.
Schools Expected to Provide Equal Access
The Department of Education has specified that a student does not have to have already suffered a loss of education in order to report harassment, and the loss of education does not need to be complete to constitute a violation. Equal access is effectively denied in a number of situations such as a student crying at night or wetting the bed because of harassment at school. The student does not need to demonstrate a “concrete injury” to prove a denial of equal access.
School staff is not always aware that an actionable harassment situation can have a very subtle appearance. They may also not be aware that their duty to report and the school’s duty to respond can be triggered by a personal observation or oral statement that they may have discounted as unimportant. An attorney can help parents assert claims on behalf of a transgender student harmed when the school failed to act when it had constructive notice of the harassment.
A School’s Obligations
When a school receives notice of sexual harassment, the institution has a duty to respond promptly. The school’s Title IX Coordinator is supposed to get in touch with the student—through the parents if the student is a minor–to discuss supportive options and explain the formal complaint process. If a formal complaint is filed, then the school must follow Title IX grievance procedures. Parents and guardians may file complaints on their child’s behalf, or the school’s Title IX Coordinator can initiate a complaint.
Cases involving students in grades K-12 have not received the public attention devoted to cases on college campuses, so parents are often unsure what the school is required to do in terms of investigation, determinations, and remedies. Advice from an experienced attorney can help parents determine whether the school failed to fulfill its obligations. Further legal action could lead to specific remedies as well as compensation for losses suffered by the student and family.
Traditionally, parents of minors or at least younger students had to be informed of their child’s behavior and had to consent to the teaching of certain material deemed mature. For instance, consent forms were often required before students could attend many sex education classes.
Schools have increasingly dropped many of these requirements, and the law is often murky about their duty to notify parents about students’ behavior or curriculum. Some parents are concerned that schools are allowing or even encouraging social gender transitions without their consent or notification, such as by referring to a child by a different name.
The new Title IX regulations could give schools more solid legal ground to avoid parental notification on the basis that a parent’s objections violate anti-discrimination provisions. In fact, there are concerns that school employees’ role as required reporters obligates them to report situations where parents create a hostile environment by refusing to support their child’s decision to transition. Remember that in an elementary and secondary school setting, all school employees have a duty to respond when they believe they’ve received notice of sexual harassment.
At this point, with regard to parental notification, both the regulations and their interpretation remain open to speculation. It is likely that a student’s right to privacy could be found to outweigh the parent’s right to direct the child’s upbringing.
When Teachers and Staff are Accused of Title IX Violations
The obligations of teachers and school staff toward transgender students seem to be increasingly unclear. Certainly, these reporters are required to notify the Title IX Coordinator if they know or suspect harassment is occurring. The problem is that it can be extremely difficult to determine when conduct crosses the line to illegal discrimination.
Teachers have been suspended or faced other disciplinary action for failing to address students by their preferred pronouns or by a name not given to them at birth. In some cases, they have been able to successfully argue that their refusal to abide by the student’s wishes is based on their religious beliefs, which are protected. It is unclear whether a teacher can take the same action based on a personal moral belief.
On the other side of the coin, parents have sued teachers accusing them of manipulating their children and encouraging transgender behavior. In the struggle to define Title IX protections and obligations for transgender students, teachers are often caught in the middle and accused of doing either too little or too much. Legal resolution of cases is often quiet, so precedent is limited.
State and Local Laws May Go Beyond Title IX
Where Title IX obligations may be murky, sometimes state or local lawmakers set different standards that are better defined. For instance, Virginia issued regulations requiring schools to receive parental permission before accepting different genders or names for students. In Maine, the Human Rights Commission held that under the state’s Human Rights Act, transgender students are allowed to use restroom facilities that agree with their preferred gender identity.
In other cases, Title IX positions based on interpretations are affirmed by specific state or local statutes. Ten states and the District of Columbia, for instance, have laws that expressly prohibit discrimination on the basis of gender identity in public schools. This is implied under federal law and made actionable by policy even though not stated outright.
Using state or local laws, parents who feel the schools have not done enough to protect their transgender child may be able to accuse teachers directly of a violation, as well as the school or school district. State and local statutes also may have more direct application for students in private schools.
Work with an Attorney Who Understands the Nuances of Title IX Law
One of the few certainties in Title IX interpretation these days is the lack of certainty with respect to many key questions. As new regulations will soon take effect, the uncertainty is not likely to abate any time soon. However, uncertainty can also provide opportunity.
Parents who feel their students’ rights have not been protected, teachers accused of violations of federal or state law, and others dealing with unsettled areas of law can make arguments in support of their position and succeed in achieving their objectives and possibly establishing new policy in the process. It is important for anyone seeking to enforce their rights—or the rights of their children—to gather as much evidence as possible to support their claim and to avoid saying or doing something that can undermine their potential case. Advice and representation from a knowledgeable attorney can make all the difference.
At Duffy Law, we have devoted our practice to protecting the rights of individuals when the system has let them down. If you have concerns about a Title IX or related matter, we invite you to contact us to learn more about how we can help.