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Just Thoughts is the blog of the Empire Justice Center, New York’s statewide, multi-issue, multi-strategy public interest law firm focused on changing the “systems” within which poor and low income families live. Here staff and guest authors will share stories, announcements and perspectives on timely issues related to our work.



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LGBT Rights in Education: Recent Victories, But Our Fight Continues

Issue Area: Civil Rights

This is a dynamic time in the LGBT (Lesbian, Gay, Bisexual, Transgender) civil rights movement.  Our LGBT communities continue to gain important victories in the fight for marriage equality, but there are still many inequalities that marriage simply cannot solve.  For multitudes of LGBT people, both in New York and nationwide, discrimination, violence and harassment are a reality lived daily that cannot be ignored.  True civil rights advancement means attaining long overdue, explicit federal and state legal protections against discrimination based on sexual orientation and gender identity and expression in the central areas of our lives - such as education, employment and housing. 

That is why Empire Justice Center wants to publically applaud the U.S. Department of Education Office for Civil Rights (OCR) for its recently released written guidelines declaring that Title IX of the Education Amendments of 1972 [1] protects “lesbian, gay, bisexual and transgender students” from sex discrimination. [2]  As this statement comes directly from the federal agency charged with enforcing Title IX, it is particularly impactful.  The sheer scope of Title IX prohibits sex discrimination in any education programs or activities which receive Federal financial assistance. [3]
 
Title IX’s importance to the community of LGBT students who can rely on this directive to help attain the dignity and respect they need in the educational setting cannot be understated.  LGBT students face high rates of discrimination, violence and harassment in school - both nationally [4] and in New York. [5]  This discrimination can negatively impact LGBT people later in life.  For example, transgender people who were fired due to anti-transgender discrimination are homeless at 4 times the national rate. [6]  

These OCR guidelines follow a growing federal trend confirming that the “sex” protected status category includes gender identity and expression in both the education and employment contexts.  At least 6 federal circuits [7] and another federal agency, the U.S. Equal Employment Opportunity Commission (EEOC), [8] have issued opinions to that effect.

OCR began showing its support for LGBT students publicly as early as 2010 in a “Dear Colleague Letter” [9] and since then also entered into a Resolution Agreement requiring the Arcadia, California Unified School District to implement inclusive policies for transgender and GNC students. [10]

Despite this trend, discrimination in schools based on sexual orientation and gender identity and expression is still not explicitly prohibited in the text of any federal law.  This is another reason why it is so crucial for federal agencies and courts to continue to build a body of positive case law and guidance confirming the scope of existing laws’ application to these students.  Until the laws are amended or new LGBT-inclusive laws are finally successfully passed, Title IX will advance educational equality for these students.

Here’s the good news: though we need to continue demanding more for our nation’s students, it is now absolutely clear that anti-LGBT discrimination by a covered entity is illegal under Title IX.

To read Julia's article about other efforts on this topic, click here.


End Notes:
 [1] 20 U.S.C. § 1681(a).
 [2] U.S. Dept. of Ed Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (April 29, 2014), available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
 [3] U.S. Dept. of Ed. Office for Civil Rights, Title IX and Sex Discrimination, (June 18, 2012), available at http://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html.
 [4] J. G. Kosciw ET AL., GLSEN, The 2011 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools, 90 (2012), http://glsen.org/sites/default/files/2011%20National%20School%20Climate%20Survey%20Full%20Report.pdf [hereinafter “National School Climate Survey”].
 [5] GLSEN (Gay, Lesbian, Straight Education Network), School Climate in New York (State Snapshot), 2 (2013), http://glsen.org/learn/research/local/state-snapshots (finding the majority of New York K-12 students surveyed reported being verbally harassed based on their gender identity/expression and/or sexual orientation).
 [6] Jaime M. Grant, ET AL., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3 (2011), http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.
 [7] See Gossett v. Okla. Ex rel. Bed. Of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001) (Title VII jurisprudence is authoritative in a Title IX analysis because “courts have generally assessed title IX discrimination claims under the same legal analysis as Title VII claims”); see also  Smith v. City of Salem, Ohio, 378 F. 3d 566, 575 (6th Cir. 2004) (holding that “discrimination against a plaintiff who is a transsexual – and therefore fails to act/or identify with his or her gender” is illegal sex discrimination under Title VII); see also Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (holding that the definition of “sex” under federal non-discrimination laws includes both biological differences between men and women and failure to “conform to socially prescribed gender expectations”); see also Rosa v. Park West Bank & Trust Co., 214 F.2d 213 (1st Cir. 2000) (holding that a transgender loan applicant refused a loan because of her gender identity/expression may bring a sex discrimination claim under the Equal Credit Opportunity Act, a statute construed consistently with Title VII); see also Glenn v. Brumby, 663 F 3d at 1317 (11th Cir. 2011) (holding “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination” under the Equal Protection Clause of the U.S. Constitution’s 14th Amendment); see also Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008) (holding “gender transition” is actionable per se sex discrimination under Title VII).
 [8] Macy v. Holder, 2012 WL 1435995, at *6 (E.E.O.C. Apr. 20, 2012) (finding that anti-transgender discrimination is per se sex discrimination under Title VII of the Civil Rights Act of 1964: “Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex . . .”).   
 [9] See “Dear Colleague” Letter of Russlynn Ali, Ass’t Sec’y for Civil Rights, 7 (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
 [10] See DOE OCR, Arcadia Unified School District Resolution Agreement, 3 (July 2013), available at http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf.



Tags: HRL | Title IX | Transgender Rights | gender identity | Office for Civil Rights | LGBT | gender nonconforming




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