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

Julia Saenz May 21, 2014

This is a dynamic time in the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) civil rights movement.  As our LGBTQ communities continue to gain important victories in the fight for marriage equality, we need to celebrate those victories without losing sight of the inequalities that marriage simply cannot solve.  For many LGBTQ 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.

Continued advancements in education law and policy, particularly for transgender and gender nonconforming (GNC) students, are a critical next step in achieving this type of meaningful and lasting equality.

That is why Empire Justice Center wants to publicly 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]  The statement directly from the federal agency charged with enforcing Title IX is particularly impactful because of the sheer scope of this law, which prohibits sex discrimination in any education programs or activities which receive Federal financial assistance. [3]

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 [4] and another federal agency, the U.S. Equal Employment Opportunity Commission (EEOC), [5] have issued opinions to that effect.  Lower New York State courts have made similar rulings when addressing anti-transgender discrimination in public accommodations. [6]

OCR began showing its support for LGBTQ students publicly as early as 2010 in a “Dear Colleague Letter,” [7] a guidance document designed to clarify schools’ obligations under Title IX.  This Dear Colleague Letter states:

“Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also, . . . be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender‐based harassment.” [8]

Since then, OCR entered into a Resolution Agreement requiring the Arcadia, California Unified School District to implement inclusive policies for transgender and GNC students and to grant a male-identified transgender middle school student access to male-gendered sex-specific facilities consistent with his gender identity instead of his biological sex. [9]  This Resolution Agreement can be cited as persuasive authority confirming covered school districts’, colleges’ and universities’ obligations under Title IX in future administrative complaints filed with OCR that allege Title IX violations. [10]

Despite this positive 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.  There is also no national OCR policy clarifying schools’ obligations to students who are transgender or gender nonconforming.  This means that when students file a lawsuit in court or an administrative complaint with OCR, the schools will likely continue to argue that conduct like refusing to allow a female-identified transgender student to use the women’s restroom is not illegal discrimination.  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 is an important tool that advocates can use to 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.

Impact of Discrimination on Transgender & GNC Students

When transgender and GNC students are unsupported and exceptionalized, many aspects of the school environment can be harmful.  For example, requiring male-identified transgender students to use the female-designated restroom and locker room often creates a daily gauntlet of unacceptance that is not only traumatizing, but exposes those students to discrimination and violence.  In a state like New York, where the majority of its primary and secondary schools still have not adopted inclusive policies and its public school students aren’t protected by the state Human Rights Law’s nondiscrimination protections, transgender and GNC students would be virtually unprotected without Title IX.

The physical and emotional toll of such policies and practices that exceptionalize transgender and GNC students or single them out for unequal treatment should not be underestimated.  Transgender and GNC students are targeted with physical violence and experience a hostile school environment at an even higher rate than their LGB peers, both nationally [11] and in New York. [12]  Transgender and GNC students in grades K-12 surveyed across the United States reported “alarming rates of harassment (78%), physical assault (35%) and sexual violence (12%) . . . and harassment so severe that it led almost one-sixth (15%) to leave a school in K-12 settings or in higher education.” [13]  Transgender and GNC students of color are targeted with harassment at even higher rates. [14]  This discrimination can cause other tragic consequences.  An astronomical 51% of respondents who were harassed or bullied in school reported attempting suicide, compared to 1.6% of the general population. [15]

The broader societal context for transgender and GNC people, including the over 58,000 New Yorkers who identify as transgender, [16] is similarly dire.  Anti-transgender discrimination perpetrated in New York State and nationally also causes extreme rates of unemployment and homelessness in the transgender community. [17]  Transgender people are nearly 4 times more likely to have annual income under $10,000, are unemployed at double the rate of the general population – 4 times the national rate for transgender people of color. [18]  Transgender people who were fired due to anti-transgender discrimination are homeless at 4 times the national rate. [19]

Economic insecurity and homelessness expose transgender people as a vulnerable population that attackers, including the police, target for hate violence. [20]  The most recent hate crime data shows the highest number of LGBT murders ever reported, and 40% of the victims were transgender women. [21]  In fact, gender identity/expression and sexual orientation are the second-highest motivator for hate crimes – second only to race. [22]

School districts have an unparalleled opportunity and obligation to stem this epidemic by creating an educational environment where discrimination is not tolerated, and that fosters acceptance of human differences and prepares students for the actual diversity of the world.

Why Title IX Protections Matter More for New York’s LGBT Students

The ability to file discrimination complaints under Title IX in court or with OCR is especially important for LGBTQ public school students in New York State because our current state statutory scheme does not protect these students.

Pursuant to a 2012 decision in the Court of Appeals, the highest court in this state held that the NYS Human Rights Law [23] only protects students in private schools.  This shocking holding determined that our state’s expansive nondiscrimination law does not protect public school students from discrimination at all – whether based on race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status. [24]  Since that ruling, no legislative fix has been enacted to close this gap.  Although Governor Cuomo in his 2014 State of the State Address proposed amending the NYS Human Rights Law “to ensure that all students are afforded protection against discrimination,” [25] this crucial amendment was ultimately not included in the final 2014 Executive Budget.  For more on the NYS Human Rights Law, check out NYSHRL Fix and NYSHRL Case Profiles.

While “sexual orientation” was added as a protected status category to the NYS Human Rights Law with the passage of the Sexual Orientation Nondiscrimination Act (SONDA) [26] in 2002, public school students currently do not receive the benefits of that law’s broad protections at all.  Another statewide gap is the continual failure of the New York State Senate to pass the Gender Expression Nondiscrimination Act (GENDA), [27] which would finally add “gender identity and expression” to the NYS Human Rights Law.  However, even if GENDA were to pass this legislative session, those explicit legal protections would not apply to public schools students either because of that same 2012 Court of Appeals decision.

Many cities and counties in New York have passed local nondiscrimination laws and ordinances that do include sexual orientation and gender identity and expression. [28]  However, these reforms (though important steps) protect only a handful of the state’s public school students, and generally are nowhere near as comprehensive as the NYS Human Rights Law.

New York’s Dignity for All Students Act (DASA) is designed to prevent bullying, harassment and discrimination in public primary and secondary schools, and is inclusive of LGBT students, including transgender and GNC students. [29]  Despite its usefulness in promoting better school nondiscrimination policies, DASA does not actually provide a private right of action for complainants.  As a result, students and parents cannot file a complaint of discrimination in either a court or with an administrative agency to hold school districts accountable when they fail to do what this law requires of them.

The New York City Human Rights Law [30] does include sexual orientation and gender identity and expression, and does cover the city’s public school students.  In March 2014, to close the gaps in how its city law, state and federal laws in the education context are implemented, the New York City Department of Education (NYC DOE) took a proactive stand to promote equality for transgender and GNC students and released its “Transgender Student Guidelines.” [31]  This practical policy provides directives on many issues that schools need to address for this population of students.  For example, NYC DOE’s policies require school staff to address students “by the name and pronoun corresponding to their gender identity that is consistently asserted at school” without a court ordered name or gender change as a prerequisite. [32]  Moreover, they also provide policies on “Restroom and Locker Room Accessibility” that mandate access to those spaces based on gender identity. [33]

Despite the NYC DOE policy, New York State has not yet created or implemented statewide policies that explicitly protect transgender and GNC students from discrimination and outline resources available to them during the gender transition process.  Such guidance is not novel.  In fact, several other states and school districts, including Massachusetts, Connecticut, Vermont and school districts in California, [34] have adopted policies explicitly addressing the following topics on how to support transgender and GNC students:

  • Access to sex-segregated spaces and facilities (including bathrooms/locker rooms) based on gender identity/expression
  • Gender-markers and students’ names on unofficial and official school records
  • Bullying, harassment, discrimination and legal protections
  • School Policies (including dress code)
  • Privacy
  • Training

Schools with such inclusive policies report better educational outcomes, less discrimination and fewer incidents of bullying. [35]  We invite and encourage New York to join these states in putting similar protections for our transgender and GNC students in writing.

LGBTQ Students Deserve Stronger Explicit State and Federal Protections

As Ian S. Thompson at the American Civil Liberties Union’s Washington Legislative Office recently stated, “OCR needs to follow this up with comprehensive guidance for schools nationwide explaining how Title IX protects transgender and gender nonconforming (GNC) students from discrimination and what steps schools need to take to be in compliance with the law and their obligations to students.” [36]

Similarly, New York needs statewide policies endorsed by the New York State Education Department that fully protect and support transgender and GNC students – from Western, NY and the Southern Tier, to the North Country, to the Capital Region, to Long Island.  This is a big state and because transgender and GNC students are growing up in all of our regions, not just in New York City where more LGBT-friendly resources already exist, protections that extend to students in our other less-resourced urban, suburban and rural communities are all the more critical.

Comprehensive, explicit federal legal protections against discrimination for LGBTQ students are also a vital next step.  The Student Non-discrimination Act (H.R. 1652/S.1088) [37] would provide those protections for this student population in all public schools.  For more information, visit Transgender Law CenterGLSENACLU.

But New York cannot and should not wait for Congress to act – that’s why Empire Justice Center is part of several statewide efforts that are pushing for actual reform to our NYS Human Rights Law and education policies.  To stay up to date on our activities, follow Empire Justice Center on Twitter @empirejustice and join us on Facebook.

For information on how you can help pass GENDA in 2014, visit the Empire State Pride Agenda.

NOTICE and DISCLAIMER:  This information sheet is specifically intended to provide general information and is not intended to be used as a substitute for legal advice.  The state and national landscape regarding the legal rights of LGBTQ individuals is a very complex and quickly-evolving area of law.  This article may not reflect current legal developments and you should not rely on this information sheet as a source of legal advice.  This information sheet is not a solicitation or an offer to represent you in any matter and does not create an attorney-client relationship with Empire Justice Center or any of its attorneys or advocates. 

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] 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).
 [5] 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 . . .”).
 [6] See, e.g., McGrath v. Toys “R” Us, Inc., 821 N.E.2d 519, 527 (N.Y. 2004) (holding that a prevailing public accommodations suit under the New York City HRL [§ 8-107(23)] by “three preoperative transsexuals” against a retailer served an “important public purpose” justifying the exception to the rule against attorney fees in nominal damages cases and acknowledging lower court decisions that clarified that the statute protects transgender people against sex discrimination before the law was amended to explicitly include “gender identity”); see also Wilson v. Phoenix House, 10 CIV. 7364 DLC, 2011 WL 3273179, at *l (S.D.N.Y. Aug. 1, 2011) (finding a “male-to female transgender  [woman] with male genitalia” has colorable claims against the defendant under the NYS HRL for preventing her from using female-gendered services and facilities); see also Rentos v. OCE-0.ffice Systems, 95 CIV. 7908 LAP,  1996 WL 737215 at *7-9 (S.D.N.Y. Dec. 24, 1996) (declining to dismiss transsexual woman’s claim that she suffered sex discrimination in violation of the NYS HRL and the New York City HRL); see also Buffong v. Castle on Hudson, 824 N.Y.S.2d 752 (N.Y. Sup. Ct. 2005) (holding that “case law supports the view that a transgendered person states a claim pursuant to New York State’s Human Rights Law on the ground that the word ‘sex’ in the statute covers transsexuals”); see also Maffei v. Kolaeton Industry, Inc., 626 N.Y.S. 2d 391 (N.Y. Sup. Ct. 1995)(holding that New York City HRL prohibiting “gender” discrimination  covers “transsexuals” and disagreeing with federal holding otherwise under that Title VII); see also Richards v. U. S. Tennis Ass’n, 400 N.Y.S.2d 267, 273 (N.Y. Sup. Ct. 1977) (interpreting the NYS HRL to include sex discrimination against transgender people).
 [7] “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 [hereinafter “Dear Colleague”].
 [8] Dear Colleague, supra note 7, at 7.
 [9] DOE OCR, Arcadia Unified School District Resolution Agreement, 3 (July 2013), available at http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf.
 [10] DOE OCR, Case Processing Manual, available at  http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html (last visited May 20, 2014).
 [11] 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”].
 [12] 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).
 [13] 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 [hereinafter “Injustice”].
 [14] National School Climate Survey, note 11 supra, at 86.
 [15] National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3, 56 (2011), available at http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf [hereinafter “Injustice”].
 [16] Jody L. Herman, The Williams Institute at UCLA, The Cost of Employment and Housing Discrimination against Transgender Residents of New York, 1-2 (2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-NY-Cost-of-Discrimination-April-2013.pdf (emphasizing that even this estimation underrepresents the transgender population in New York due to factors like underreporting).
 [17] Injustice, supra note 13, at 2.
 [18] Injustice, supra note 13, at 2-3.
 [19] Injustice, supra note 13, at 3.
 [20] National Coalition of Anti-violence Programs (NCAVP), Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer, and HIV- affected Communities in the United States in 2011, 46 (2012), available at http://www.avp.org/storage/documents/Reports/2012_NCAVP_2011_HV_Report.pdf [hereinafter “Hate Violence”]; Injustice, supra note 13, at 4.
 [21] Hate Violence, supra note 20, at 19.
 [22] U.S. Dep’t of Justice, Federal Bureau of Investigations, Uniform Crime Report: Incidents and Offenses, 2011, 1 (2012), http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2011/narratives/incidentsandoffenses_final.pdf.
 [23] N.Y. EXEC. LAW § 296.
 [24] In the Matter of N. Syracuse Central Sch. Dist., No. 109 & In the Matter of Ithaca City Sch. Dist., No. 110 (N.Y. Ct. of App., June 12, 2012).
 [25] Gov. Andrew M. Cuomo, Building on Success: 2014 State of the State Address, 182 (January 8, 2014), available at http://www.governor.ny.gov/assets/documents/2014-SOS-Book.pdf.
 [26] NYS Attorney General, Sexual Orientation Nondiscrimination Act, available at http://www.ag.ny.gov/civil-rights/sonda-brochure (last visited May 14, 2014).
 [27] Empire State Pride Agenda, Current Legislation: GENDA, available at http://www.prideagenda.org/igniting-equality/current-legislation/gender-expression-non-discrimination-act (last visited May 14, 2014).
 [28] The Williams Institute at UCLA, Local Laws and Government Policies Prohibiting Discrimination Based on Gender Identity in New York, (2013), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Liebowitz-NY-local-laws-Jun-2013.pdf (local laws include: New York City, City of Rochester, City of Brighton, Town of Rhinebeck, Suffolk County, City of Buffalo, City of Ithaca, Tompkins County, Albany County, Westchester County, City of Binghamton, City of Syracuse).
 [29] N.Y. Educ. Law §10-18 (2010); see id. at §11(6) (defining “gender” as “a person’s actual or perceived sex and includes a person’s gender identity or expression”).
 [30] N.Y.C. Admin. Code § 8-107.
 [31] NYC Dept. of Ed., Transgender Student Guidelines, (2014), available at http://schools.nyc.gov/RulesPolicies/TransgenderStudentGuidelines/default.htm (last visited May 12, 2014)  [hereinafter “NYC DOE”].
 [32] NYC DOE, supra note 30.
 [33] NYC DOE, supra note 30.
 [34] Massachusetts  Department of Elementary and Secondary Education, Guidance for Massachusetts Public Schools
Creating a Safe and Supportive School Environment, (2012), available at http://www.doe.mass.edu/ssce/GenderIdentity.pdf; Connecticut Safe School Coalition, Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination Laws, (2011), available at http://www.ct.gov/chro/lib/chro/Guidelines_for_Schools_on_Gender_Identity_and_Expression_final_4-24-12.pdf; 16 V.S.A. § 565; MD Code, Education, § 7-424.1; Los Angeles Unified School District, Transgender and Gender Variant Students -Ensuring Equity and Nondiscrimination, (2011), available at http://www.capradio.org/media/1008486/1231_transgender.pdf.
 [35] 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, 58, 75, 77 (2012), available at http://glsen.org/sites/default/files/2011%20National%20School%20Climate%20Survey%20Full%20Report.pdf [hereinafter “National School Climate Survey”].
 [36] Ian S. Thompson, ACLU Washington Legislative Office, Victory! Title IX Protects Transgender Students, (May 1, 2014), available at https://www.aclu.org/blog/lgbt-rights-womens-rights/victory-title-ix-protects-transgender-students.
 [37] H.R. 1652/S.1088, 113th Cong. (2013).

For more information, please contact:

Milo Primeaux
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614