Many students face harassment and discrimination at school. Transgender and gender non-conforming students are particularly vulnerable to mistreatment from both fellow students and school officials. The following is an overview of some of the laws and regulations that have been used to protect students facing harassment or discrimination on account of their gender identity.
Common Forms of Gender Discrimination
Discrimination against transgender students may include being expelled from school, kicked out of class, held after school, or otherwise treated differently as a result of their gender identity or expression. Other areas that impact transgender students specifically include the use of names and pronouns with the intent to harass or mock, restrictions or confrontations regarding restroom use, in the administration of gender segregated classes and extracurricular activities, and in the application of dress codes.
Federal Protection Against Discrimination
The Patsy Mink Equal Opportunity in Education Act, previously known as Title IX of the United States Education Amendments of 1972, states that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
Although Title IX protects against gender discrimination it is not necessarily interpreted as providing protection to transgender students. However, this is still an unsettled debate.
In 2014, the U.S. Department of Education issued a set of guidelines stating that Title IX does indeed protect against the discrimination of transgender students. The memo instructed public schools to treat transgender students consistent with their gender identity in all aspects of planning, implementation, as well as in the operation and evaluation of single-sex classes. But the Trump administration, through the Dept. of Education, issued a new set of guidelines recinding the Obama-era protections. The new guidelines effectively direct students covered by Title IX to use the restroom or locker room that corresponds with their birth-assigned gender, while ensuring continued protections against discrimination and harassment.
Still, California and some other states have passed laws that effectively maintain the protections of transgender students initiated by the 2014 guidelines. But uncertainty remains both among the states and in the trajectory of federal policy (and judicial interpretations of "gender discrimination") going forward.
Another point of uncertainty has been the extent to which Title IX protections extend to interactions between students, as opposed to interactions involving schools and their officers and administrators. The "Dear Colleague Letter" issued by the U.S. Department of Education's Office for Civil Rights in 2011 stated that sexual harassment and sexual violence interfere with a student's right to receive an education free of discrimination. Since that time, victims of sexual harassment have filed actions against schools under Title IX for their failure to address sexual harassment and violence among their students.
Title IX protection only extends to schools that receive federal funds, so private institutions may not be subject to Title IX.
State Protection Against Discrimination
Although Title IX covers nearly all public schools and many private schools, there are still some private institutions that don't receive federal funding that the law cannot reach. Most of these institutions are, however, subject to regulation by state and local authorities.
California's Student Safety and Violence Protection Act of 2000 is an example of a state law designed to protect students not covered by Title IX protections. Prior to the enactment of this law, the California Education Code specifically prohibited discrimination and harassment on the basis of sex, ethnicity, race, national origin, religion, color, or disability. The new law extended protection to cover sexual orientation and gender identity.
Ten states (California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, Oregon, Vermont and Washington) as well as the District of Columbia have laws specifically prohibiting gender identity discrimination in public schools and, in some cases, private schools that receive state funding. In addition to these states Maryland and North Carolina require that school districts have a policy against harassment and bullying based on a list of characteristics that include gender identity.
Discrimination against transgender and gender non-conforming individuals is a developing area of law. Legislation and the interpretation of existing statutes may change suddenly and dramatically. Check back for updates.
Fighting Discrimination and Harassment
If you are the victim of discrimination or harassment, filing a written complaint that includes details about the incident, participants, and witnesses is generally the starting point. A complaint should be filed with the school and a record of statements or actions taken in response should be kept. Depending on whether your school is subject to federal or state anti-discrimination laws, you may also file a complaint with the U.S. Department of Education's Office for Civil Rights or your state's Department of Education. Complaints need to be filed in a timely fashion.
In some cases, hiring an attorney to assist in pursuing your complaint can be helpful. The laws relating to discrimination against transgender students vary greatly as this is a developing area of law. An attorney familiar with civil rights claims in your jurisdiction can assist you by ensuring relevant deadlines are met, presenting evidence effectively, calling attention to relevant laws, and ensuring that authorities understand the gravity of your complaints.