Gender Equity
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Our Lawyers Help Students, Faculty, Staff and Coaches of All Gender Identities Protect Their Rights Under Title IX
Gender equity is a critical issue in modern society, and nowhere is it more important that individuals of all gender identities receive equal treatment than in the academic environment. When individuals suffer from disparate treatment based on their gender, and when they see others fall victim to gender-based discrimination, this has negative effects that can last a lifetime.
Our firm is committed to helping students, faculty, staff and coaches of all gender identities and sexual orientation protect their rights. Today, these rights exist primarily under Title IX of the Education Amendments of 1972 and court opinions interpreting this legislation. Under Title IX:
“No person in the United States shall, on the basis of sex, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The courts have interpreted the word “sex” in Title IX to include gender identity. This includes the U.S. Supreme Court in the case of Bostock v. Clayton County, Georgia. Subsequent to the Supreme Court’s decision in Bostock, in 2014 the U.S. Department of Education’s Office of Civil Rights (OCR) issued guidance stating that Title IX’s prohibitions, “extend[ed] to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” In 2021 the U.S. Department of Justice’s Civil Rights Division issued a memorandum that “address[ed] the application of Bostock to Title IX, determining that Title IX’s prohibition on discrimination ‘on the basis of sex’ includes discrimination on the basis of gender identity and sexual orientation.”
Yet, significant issues of gender equity remain.
There are several reasons why. One reason is that Title IX’s prohibition on sex-based discrimination (including gender-based discrimination) in the academic environment is subject to several statutory exceptions—nine, in fact. These exceptions address everything from religious exemptions to military schools, and from fraternities and sororities to “Boy or Girl conferences.” Another reason is our nation’s deepening political divide, which has unquestionably reshaped the Supreme Court for the current generation of students, academics and athletics personnel.
Despite growing concerns about the advancement and security of gender equity in the United States, Title IX still provides clear protections, and it still provides a clear path for those who have faced discrimination and unfair treatment. Our firm is at the forefront of issues involving gender equity in the United States’ colleges and universities, and our lawyers are here to help if you have questions or concerns.
Understanding Title IX and Its Implications in Academia and College Sports
In the decades since Title IX’s enactment, regulations and court decisions have helped pave the way for student athletes and school employees to pursue discrimination claims related to gender equity. Our Title IX practice focuses on four critical areas:
Title IX Athletics
Title IX has a major impact on athletics programs and the rights of student athletes, coaches and staff at colleges and universities that receive federal financial assistance. While the rights of transgender athletes have recently come to the forefront, we are continuing to see numerous cases related to the funding difference between men’s and women’s athletic programs. Currently, women’s programs receive only about a third of the funding of men’s programs; and, when colleges and universities make budget cuts within their athletics departments, women’s programs are almost always the first to go.
Title IX for Women
The enactment of Title IX has been among the greatest achievements in the women’s movement in the United States. Title IX protects students and employees at all levels at colleges and universities that receive federal financial assistance. However, while we have witnessed a sea change in women’s rights and opportunities since Title IX took effect, barriers remain, and women continue to face gender-based discrimination in athletics, sports and employment.
Title IX Female Athletes
As a female student athlete do you feel that you receive equal treatment to your male counterparts? If your answer to this question is, “No,” you are not alone.
Gender-based discrimination remains a major issue in college sports, and this discriminatory treatment negatively impacts female athletes in nearly all cases. In one of the most obvious signs of gender-based discrimination against female athletes, on average, Division I football schools devote approximately 28% of their athletics budgets, 31% of their recruiting dollars and 42% of their athletic scholarship dollars to female athletes and women’s programs.
Title IX Transgender Issues
The OCR’s 2014 guidance referenced above makes clear that Title IX prohibits colleges and universities from discriminating against transgender students, including but not limited to transgender student athletes. Transgender students have all of the same rights as all other students under Title IX. Yet, many transgender students continue to face discrimination, bullying and exclusion—not only by their peers, but by those in positions of authority as well. Transgender faculty and staff are afforded the same protections, and sadly many continue to face the same challenges.
Examples of Gender Equity Issues that Fall Under Title IX
Gender-based discrimination can negatively affect students, faculty, staff and coaches in virtually all areas of academics and athletics. The term “discrimination” does not describe any one specific form of disparate or ignorant treatment, but rather many different forms of harmful (and illegal) conduct. As listed by the OCR and the U.S. Department of Justice’s Civil Rights Division, gender equity protections under Title IX extend to matters including:
- Recruitment
- Admissions and admissions counseling
- Financial assistance
- Housing
- Comparable facilities
- Discipline
- Employment
- Sex-based harassment
- Sexual assault and sexual violence
- Treatment of pregnant and parenting students
- Treatment of LGBTQIA+ students
- Single-sex education
- Retaliation against those who assert their rights under Title IX
Even this is a non-exclusive list of examples. If you believe that you have been discriminated against in any manner based on your gender identity, we strongly encourage you to contact us to discuss what we can do to help.
Representation for Students in Gender Equity Matters Under Title IX
Our lawyers represent students in all gender equity matters under Title IX. Broadly speaking, most student claims under Title IX fall into one of three categories: (i) disparate treatment, (ii) disparate impact, or (iii) retaliation.
1. Disparate Treatment
As the U.S. Department of Justice’s Civil Rights Division explains, “Disparate treatment refers to actions that treat similarly situated persons differently on the basis of a prohibited classification. . . . Under the disparate treatment theory of discrimination [under Title IX], the core question is whether a recipient, through its officials, has treated people differently on the basis of sex.” Sex-based discrimination includes gender-based discrimination under Title IX. In order to pursue a claim for discriminatory treatment under Title IX, it is necessary to prove:
- The college’s or university’s decision-makers were aware of the relevant gender differences; and,
- These decision-makers took action based, at least in part, on these gender differences.
Importantly, to establish a claim under Title IX, it is not necessary to prove bad faith or ill will. In the words of the Civil Rights Division, “Disparate treatment prohibits unjustified sex-based distinctions regardless of the motivation behind those distinctions. . . . It is not a harmful motive, but the decision to treat differently on the basis of sex, that runs afoul of Title IX.”
2. Disparate Impact
Even if a college’s or university’s decision is not based on gender differences, it can still violate Title IX if it is discriminatory in its effect. This is known as “disparate impact” discrimination. As the Civil Rights Division explains, “disparate impact focuses on the consequences of a facially sex-neutral policy or practice. Under this theory of discrimination, the core inquiry focuses on the results of the action taken, rather than the underlying intent.” For example, a student athlete testosterone testing program may be facially neutral in that all students are subject to the same standards, but this program could still have the effect of excluding transgender athletes at a higher rate than others. This would be a clear disparate impact despite the fact that the testing regime itself does not involve disparate treatment.
3. Retaliation
Title IX also protects students from retaliation. This means that a school, department or athletic program cannot take adverse action against you based on your decision to assert your Title IX rights. There are four key components of a retaliation claim under Title IX:
- You engaged in activities or asserted rights protected under Title IX;
- The school (or a school employee) knew of your protected activity;
- The school (or a school employee) took adverse action against you or subjected you to adverse treatment or conditions; and,
- You can establish a “causal connection” between your protected activity and the adverse action, treatment or conditions.
While colleges and universities will often defend against retaliation claims by asserting a non-violative reason for their actions, in many cases, this is nothing more than a pretext. In other words, while it facially supports the school’s action, in reality, it has nothing to do with the decision that was made. When a college or university asserts a pretextual defense in response to a retaliation claim, this alone can support an “inference of retaliation.”
Representation for Faculty and Staff in Gender Equity Matters Under Title IX
Our lawyers also represent faculty and staff in gender equity matters under Title IX. While this predominantly includes employment matters, it also includes matters of broader impact for academic communities, college athletics and the nation as a whole. On the employment side, our areas of representation include:
1. Title VII vs. Title IX
Faculty and staff at schools that receive federal financial assistance are in the unique position of being entitled to the protection of both Title VII and Title IX in employment-related matters. While the courts have held that the substantive standards governing discrimination in employment under Title VII apply equally under Title IX, the procedural standards governing Title VII and Title IX claims differ. Our lawyers have significant experience handling claims under both Title VII and Title IX, and we can assist you with asserting your legal rights in the most effective and efficient way possible.
2. Gender-Based Employment Discrimination
Title VII and Title IX both prohibit gender-based discrimination in employment as a form of prohibited sex discrimination. In the employment scenario, examples of discriminatory conduct include (but are not limited to):
- Discriminatory recruitment and interviewing policies and procedures
- Discriminatory compensation
- Discriminatory job assignments, advancement opportunities and promotion
- Discriminatory tenure decisions
- Harassment in the workplace (including quid pro quo harassment and creating or fostering a hostile work environment)
- Sexual harassment complaints either as complainants or respondents
3. Health Insurance, Benefits and Services
Another area of concern for many faculty and staff members is access to health insurance, benefits and services. As the U.S. Department of Justice’s Civil Rights Division plainly states, federally-supported colleges and universities, “must not discriminate on the basis of sex [including gender] in providing health and insurance benefits or services.” This specifically includes access to family planning services and gynecological care.
All of the issues discussed above with respect to students’ rights under Title IX apply equally to faculty and staff. If you have experienced any form of disparate treatment as a result of your gender identity, if you feel that any of your school’s policies or programs have a disparate impact on students of certain genders, or if you feel that you are a victim of retaliation, you can—and should—speak up. Our lawyers can take all appropriate legal action on your behalf, whether you are seeking to be personally compensated or you are seeking to affect widespread change at your academic institution and beyond.
Speak with a Lawyer about Your Gender Equity Claim in Confidence
If you need to know more about filing a gender equity claim against a college or university, we strongly encourage you to speak with one of our lawyers in confidence. To schedule a phone consultation at your convenience, please call 203-946-2000 or contact us confidentially online today.
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