Institutions Consider Title IX Protections for LGBTQ + Students in Light of OCR Notice

The Department of Education’s Civil Rights Office clarified last month that many expect LGBTQ + students to be protected by Title IX of the 1972 Education Amendments, which means students cannot not be discriminated against because of their sexual orientation or gender identity at institutions receiving federal funds. While the Interpretation Notice aligns with the approach many colleges and universities are already taking, it does indicate that the OCR is open to business on these issues and is ready to hold institutions accountable.

The ministry based its interpretation on the 2020 Supreme Court ruling in Bostock v. Clayton County, who said it was impossible to discriminate against a person on the basis of their gender identity or sexual orientation without discriminating against them on the basis of sex, which is prohibited by Title IX.

The Obama administration issued guidelines in 2016 that Title IX prohibited discrimination based on gender identity, including transgender status, but the Trump administration withdrew those guidelines less than a year later. This sent the message that the OCR would not deal with many of the complaints filed by LGBTQ + students, said Paul Castillo, lawyer and student rights strategist at Lambda Legal, a civil rights organization focused on LGBTQ + people. .

“A lot of civil rights organizations, like Lambda Legal, have received an influx of calls due to the message sent by the previous administration not to apply Title IX in the same way to LGBTQ students,” Castillo said. “This clarification is an important message.”

Specifically, it makes it clear that the OCR will investigate allegations of harassment, discriminatory discipline, unequal access to educational opportunities, and other civil rights violations at their colleges and universities made by LGBTQ + students.

“We are happy and happy and think this is important to do,” said Shane Windmeyer, Founder and Executive Director of Campus Pride. Overall, what Biden did in the first few months of his presidency replaces and repairs the damage Trump has done to LGBTQ people with actions like this to be more inclusive and bring us back to where we were and the progress we were making. “

Administrations usually don’t go back on interpretations, so what the Trump administration did was unusual. Castillo noted that he believed Obama’s and Biden’s Title IX clarifications were the correct interpretations of the law, based on Federal Court rulings that have been made on this matter.

Since the publication of its opinion on June 16, the ministry has published a resource guide in collaboration with the Civil Rights Division of the Ministry of Justice reiterating its position and providing examples of the types of cases that would fall under the jurisdiction of the Ministry of Justice. ‘OCR. Although the majority of the examples describe incidents in elementary and secondary schools, LGBTQ + students face discrimination in many aspects of their post-secondary experience, Castillo said.

Title IX complaints of LGBTQ + discrimination are likely to fall into three main areas: access to facilities, how students are treated by names and pronouns chosen, and participation in sports, especially for women, said Brett Sokolow, executive director of the Association of Title IX Administrators. . LGBTQ + students may also experience discrimination in housing, harassment, sexual assault and violence, and access to medical services provided by the university.

“There should be a general review of all activities in the education program,” Castillo said. “LGBTQ students – especially LGBTQ students of color – have experienced disproportionate harassment and discrimination and often do not receive the essential support they should for their academic success. “

After the Obama administration’s guidelines were released, Campus Pride began to receive an increase in calls from institutions – from two- and four-year colleges, especially in more conservative and rural areas – who wanted to know how they could better. serve their transgender people. students and make their campuses more equitable, Windmeyer said. These institutionally established approaches were not necessarily reversed when the Trump administration reversed the department’s position, so Sokolow expects the latest clarification will most likely lead to an expansion of the protections already in place.

“They will start to develop best practices rather than a foundation of compliance practices, which I think is largely where we are now,” Sokolow said. “By placing this issue firmly within the overall responsibilities of Title IX coordinators, you will have someone who will be responsible for upholding what the law requires and ensuring that this is applied at all levels in all areas. departments of the institution. “

So, not only should there be the option of using a gender-neutral, single-cubicle bathroom in the residences, but students should also have this option available in the university buildings. In addition to having policies that recognize names and chosen pronouns, institutions should consider how this applies to their student information systems. LGBTQ + students should have access to the same type of supports when faced with harassment, discrimination or assault – such as changes in housing assignments or class schedules, tutoring services or counseling – which is offered to victims of any other type of gender discrimination. .

“These are all the types of things that these types of clarifications help have a positive impact on campuses,” Windmeyer said.

Sokolow expects the notice to change the way Title IX coordinators approach their work, giving them greater clarity and allowing them to feel more assertive in the way they protect LGBTQ + students. It may also encourage some coordinators to take risks and see how far they can push the protections.

“I think it’s inevitable when new protections are contemplated by law – where are the limits? Sokolow said. “A very interesting question in higher education is what happens when a faculty member intentionally cheats on a student in the classroom. Is this a violation of Title IX? Is it a problem of freedom of expression? Is it a problem of academic freedom?

Some of these questions are likely to be considered by the courts. Litigation generally follows OCR guidelines, and Sokolow expects this to be no exception over the next academic year. The Title IX Administrators Association, or ATIXA, intends to closely monitor the courts to see if the guidelines are supported or challenged by the courts.

In the meantime, institutions should assess their policies and procedures to ensure complaints from LGBTQ + students are treated the same way they would treat any other student filing a Title IX complaint, Castillo said. They should also review their non-discrimination policies to ensure that sexual orientation and gender identity are expressly included.

The training will be essential, not only for Title IX coordinators, but for all university employees, Sokolow said, so that all members of the campus community understand how the rules work. ATIXA has already adapted its training with the best practices which reflect the updated position of the department.

But policy back and forth between presidential administrations is not enough to create an environment of inclusion, Windmeyer said, adding that Congress must pass legislation such as the Equality Act, which would provide protections against gender equality. discrimination against LGBTQ + people – including in education – who are consistent.

“It depends on the administration how things are applied and how things are interpreted,” Windmeyer said. “It’s like a tennis match, where you go from player to player. This is not the way you protect young people.