Transgender Students Protected Under Title IX

The U.S. Department of Education, Office for Civil Rights (OCR) and the U.S. Department of Justice, Civil Rights Division (DOJ) have determined that Title IX prohibits school districts from discriminating against transgender students, according to a settlement they entered with Arcadia Unified School District on Wednesday. This settlement follows a series of interpretations by federal agencies concluding that discriminating against a person for not conforming to sex stereotypes qualifies as sex discrimination.

The details of the complaint are discussed in the Education and Justice Departments joint letter announcing the agreement. The unnamed student commenced gender transition from female to male during the fifth grade while attending an elementary school in the Arcadia District. He “consistently and uniformly identified and presented as male in school and all other aspects of his life, including through his traditionally masculine clothing and hairstyle, adoption of a male name, and preference to be called masculine pronouns.”

The student experienced no peer harassment while in middle school, but the school district would not permit him to use male-designated restrooms and locker rooms, in spite of his family’s wishes and the medically appropriate standards of care recommended by the student’s healthcare providers. Instead, he was required to use a private restroom in the school health office on the first floor as both a restroom and changing area for gym class. This excursion caused the student to miss class time (especially as this office would be locked occasionally) and face questions from his peers about where he was going. On an overnight field trip considered to be a highlight of the seventh grade, the student was required to stay in a private cabin separate from all other students. This isolation upset him throughout the trip and “created a distance between him and his peers.”

In response to this treatment, the student’s parents filed separate complaints to the OCR and DOJ alleging that Arcadia had violated Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964. Title IX prohibits sex discrimination in “any education program or activity receiving Federal financial assistance;” Title IV prohibits discrimination by public schools against students based on sex. The OCR and DOJ determined that “[a]ll students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX and Title IV,” though the letter later disclaims that it is “not a formal statement of OCR policy.”

Under their settlement, Arcadia must “treat the Student the same as other male students in all respects in the education programs and activities offered by the District.” Also, it must update all policies and materials to include gender-based discrimination as a form of sex discrimination and provide training to all administrators regarding Arcadia’s obligations to prevent and address gender-based discrimination.

The settlement letter did not address how this interpretation of Title IV and Title IX could impact complaints regarding sexual orientation discrimination by schools. However, the Department of Education’s Former Assistant Secretary for Civil Rights Russlynn Ali sent a letter to schools in October 2010 explaining how Title IX may apply to sexual orientation discrimination. In that letter, Ali provides an example of a gay high school student who is bullied for having effeminate mannerisms. She writes that “the harassing conduct was based in part on the student’s failure to act as some of his peers believed a boy should act . . . even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.”

This case with Arcadia School District is the most recent example of federal agencies finding that laws prohibiting sex discrimination cover those discriminated because of their gender identity. In the 2012 case Macy v. Holder, the Equal Employment Opportunity Commission found “that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.” (Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex; click here for a full analysis of the impact of this opinion. Similarly, the Department of Health and Human Services has interpreted Section 1557 of the Patient Protection and the Affordable Care Act, which prohibits sex discrimination in “any health program or activity, any part of which is receiving Federal financial assistance,” to cover discrimination on the basis of gender identity. Additionally, in 2012, the Department of Housing and Urban Development published a new rule that ensures that core agency programs are “open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.”