April 29, 2014 | by Chris Johnson
Trans students assured protections in DOE guidance
Arne Duncan, Department of Education, Washington Blade, gay news

The Education Department under Arne Duncan has affirmed that transgender students are protected under current law. (Washington Blade file photo by Michael Key)

Transgender students are protected under current law from discrimination and harassment in schools, according to new guidance unveiled by the Department of Education on Tuesday that LGBT advocates say marks the first time the Obama administration has clarified this interpretation of the law.

The language, which was made public Monday, is part of a Q&A for colleges, universities and public schools on handling sexual violence, but includes a passage articulating that Title IX of the Education Amendments of 1972 extends protections to non-gender conforming students, including those are who transgender. Title IX prohibits discrimination on the basis of sex in federally funded education programs.

“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation,” the guidance says.

The guidance was highlighted by the White House Task Force to Protect Students from Sexual Assaults in conjunction with a new report of the issue intended to provide clarity about the requirements of Title IX in response to requests from institutions and students.

The Q&A was signed by Catherine Lhamon, assistant secretary of education for civil rights, who in a statement affirmed that students have a right to equal opportunity throughout the education system.

“Our federal civil rights laws demand that all students – women and men; gay and straight; transgender or not; citizens and foreign students – be allowed to learn and participate in all parts of college life without sexual assault and harassment limiting their opportunities,” Lhamon said. “The Office for Civil Rights stands ready to enforce this core principle to ensure all students’ safety in schools.”

LGBT advocates praised the guidance, saying it was the result of a continued effort to encourage the Obama administration to give voice to these protections. Even though the overall guidance is about sexual assault, LGBT advocates insist it applies to all forms of discrimination and harassment of transgender students at school.

Ian Thompson, legislative representative for the American Civil Liberties Union, said the guidance was a landmark statement for transgender students, but further action is needed.

“This guidance is crystal clear and leaves no room for uncertainty on the part of schools regarding their legal obligation to protect transgender students from discrimination,” Thompson said. “The Office for Civil Rights must now take the next step and issue comprehensive guidance on Title IX and transgender students.”

Although LGBT advocates say this is the first time that the Obama administration has asserted transgender students have protections under Title IX, the Department of Education has acted under the principle for some time.

In 2010, the Department of Education sent out a “Dear Colleague” letter to schools warning them that allowing anti-LGBT bullying and harassment could be a violation of Title IX and Title IV of the Civil Rights Act of 1964. Two years later, the Education and Justice departments reached a deal with the Anoka-Hennepin School District in response to students subjected to anti-gay harassment under this principle to protect them.

Just last year, the Arcadia Unified School District settled with a transgender boy over a lawsuit filed by the National Center for Lesbian Rights over the discriminatory treatment he received during a school camping trip. The settlement was the result of an investigation by the federal government under Title IX and Title IV.

Harper Jean Tobin, director of policy for the National Center for Transgender Equality, called the new guidance a “breakthrough for transgender students” because they often “face hostility at school and refusal by school officials to accept them for who they truly are.”

“It is now clearer than ever that schools nationwide are responsible for ensuring that transgender students are respected and safe, and students can seek protection from the Department of Education and the courts if schools fail to do so,” Tobin said.

The Education Department has reached the conclusion that Title IX extends to transgender students after numerous courts have concluded anti-transgender discrimination amounts to gender discrimination under existing law.

For example, that was the determination of the 11th U.S. Circuit Court of Appeals in the case of Glenn v. Brumby, which was filed by a transgender worker who lost her job at the Georgia State Legislature. The U.S. Equal Employment Opportunity Commission in its decision in Macy v. Holder and the Department of Health & Human Services in its interpretation of the Affordable Care Act have reached similar conclusions that transgender discrimination is the same as gender discrimination.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the new guidance is important because transgender and non-conforming students face “staggering” rates of discrimination in school.

“For example, 78 precent report harassment, 35 percent report physical assault, and 12 percent report sexual violence in educational settings, with many transgender and gender non-conforming students leaving school because of the appalling discrimination they experience,” Carey said. “The policy announced today is a giant leap forward in ending those staggering rates of discrimination.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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