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Here’s how Title IX protects LGBTQ+ students – and why you should really know this (current/updated)

Updated: Apr 15

LGBTQ+ students and everyone in their vicinity – their parents and educators, school and college counselors, administrators, trustees, school and district counsel, legislators, government officials, enforcement officials, nonprofit and CBO leaders, bus drivers, and everyone else – should know about Title IX, the federal law that protects LGBTQ+ students from discrimination and harassment.


Not only is interpreting Title IX law complicated and, let’s admit it, kind of boring, but it also changes quite frequently with court rulings, updated guidance from the Department of Education, and evolving social dialogues. How is everyone supposed to keep up with it? And why does it even matter, as long as someone somewhere in the building knows about it?


I created this resource to present Title IX for LGBTQ+ students simply and directly, to clarify why this is so important, and to update it with major changes as new guidance is released.




Why you need to know this


Getting straight to the point:

  • Students and their parents need to understand the authority, breadth, and lack of ambiguity of the law that protects them; and they should know the process for filing a Title IX complaint, regardless of how likely the situation is to occur.

  • Educators need to know how to protect LGBTQ+ students, direct resources to students, and recognize when something isn’t right in their schools or communities.

  • School counselors, college counselors, and independent educational consultants should be aware of the colleges that have received Title IX religious exemptions, which allow dangerous environments for LGBTQ+ students on those college campuses.

  • Administrators need to know how to keep in compliance with federal law; how to create processes, programs, and resources that support LGBTQ+ students and mitigate risk around discrimination and harassment; and how to direct funds appropriately.

  • School board members, legislators, and other officials should know that the U.S. Constitution requires schools to always comply with Title IX before complying with discriminatory state and local policies, and that schools that violate federal Title IX law could lose their federal funding.

  • School and district lawyers know that, but they should make the difficult calculation to err on the side of federal law (and LGBTQ+ students’ rights to safety) when advising schools.

  • Journalists and others in the media should know to represent discriminatory state and local policies as illegal, in violation of federal law.

  • Local advocates should know how local policies may reinforce or conflict with Title IX and educate their communities about that.

Most people are ahead of the curve by knowing about Title IX at all, but even those familiar with the law may not be well prepared for specific situations and conversations around LGBTQ+ safety when they arise suddenly. The readier we are to discuss Title IX, the more powerful we’ll be to protect students’ interests, whether the situation involves subtle discrimination, a hostile learning environment, or anti-LGBTQ+ state and local policies.




What is Title IX?


Title IX of the Education Amendments of 1972 is the federal law that protects individuals from discrimination and harassment “on the basis of sex” at any educational entity that receives federal funding:


"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance..." Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.

“On the basis of sex” includes LGBTQ+ students who receive different treatment based on their sexual orientation or gender identity.


Harassment includes any action that is “threatening, harmful, or humiliating” and includes cyberbullying (NWLC’s LGBT Title IX Fact Sheet 2012). Discrimination is, simply enough, the different treatment based on sex. (The broad meaning of discrimination is what led, tangentially, to Title IX’s reputation in popular discourse as a major consideration in college athletics programs.)


So, it’s discrimination to disallow a student from using a restroom aligning with their gender identity, and it’s harassment to misgender them or out them to their parents without their consent. Schools must take action against the bullying and harassment of LGBTQ+ students. Schools that fail to comply with Title IX risk losing their federal funding.





Where does Title IX apply?


The language of Title IX specifies protections for individuals at any “education program or activity” that receives federal funds. The programs and activities include all operations of schools and colleges, as well as vocational training institutions like police academies. Activities can occur on or off campus, or even online (“It’s time to assess your “education program or activity” 2020).



Who has to follow Title IX?


Schools that receive federal funding include nearly all public and private colleges (except a small handful that refuse federal funding), all public K-12 schools, and most K-12 private schools. Even some private schools may have received federal funds if they accepted a pandemic-era PPP loan. (You can easily search for that information here.)


Federal funding doesn’t just include direct subsidies; it also includes participating in federal student aid programs like direct loans and Pell Grants. ALERT: Be cautious of schools with Title IX exemptions that permit religious colleges to skirt Title IX law and permit discrimination and harassment of LGBTQ+ students on their campuses. Learn about Title IX exemptions here.


Title IX-exempt colleges are not only affirming places, but they actively attempt to recruit LGBTQ+ students. School counselors, please consider declining these schools’ requests to visit your school, attend your college fairs, and recruit your students! (If you would like to discuss this with me, please contact me directly at robert@collegetorch.com.)



What happens when Title IX conflicts with state laws or local policies?


Simply put, those policies are illegal because they violate federal Title IX law. There is a gaslighting effect around anti-LGBTQ+ laws and policies, where the discrimination is framed as moral and empowering (e.g. “parental rights”) or situational (e.g. trans in athletics) or contextual (e.g. healthcare restrictions only for minors). They may feel appropriate within a regional culture that does not promote acceptance of LGBTQ+ individuals. None of this matters, as the law is entirely clear: When they conflict, federal law always trumps state laws and local policies (Supremacy Clause of the U.S. Constitution).


Of course, it’s a daunting prospect to stand up and assert Title IX law in places like schools, school board meetings, and town hall meetings with your state representatives and local officials. It can be just as difficult to put that assertion in writing, as in a letter, email, statement, or social media post. The first step is preparing yourself with knowledge around Title IX law and practicing discussing it and explaining it to others in your community.



For survivors


If you or your teen has experienced victimization, discrimination, or harassment, you can learn about the Title IX complaint process here and file that complaint here.


Title IX requires schools to publish notices of nondiscrimination and designate an impartial party as the Title IX coordinator and make their contact information public. Schools must publish formal grievance procedures for sex-based harassment, discrimination, and violence. They must respond promptly to complaints, and they must disallow retaliation against students who make complaints. For more details of the grievance procedure and requirements (e.g. around anonymity, mediation, etc.), see the Know Your IX website.


Engaging in a school’s grievance procedure does not preclude survivors from reporting a crime to law enforcement, and vice versa.


When schools do not apply the Title IX grievance procedure to LGBTQ+ students, a Title IX complaint may be directed toward the school itself. The Office for Civil Rights (OCR) may review that complaint and take it up as an investigation, putting the school at risk of losing its federal funding.


Unfortunately, guidance given in August 2020 by the Trump administration drastically rolled back protections for survivors and blunted the power of Title IX to hold perpetrators of sexual violence accountable (“Title IX Regulations Addressing Sexual Harassment” 2020), under a pretense of protecting people from false accusations. Currently, this guidance is still in effect.




History


Title IX was originally passed in 1972 with the primary intention of providing equal educational opportunities to women and girls. Now, over fifty years later, the idea that the words “on the basis of sex” includes sexual orientation and gender identity has been established thoroughly by both precedent and guidance. Although the Supreme Court has not made a direct ruling that Title IX includes LGBTQ+ students, the Department of Education in 2021 formally asserted this interpretation after the court’s 2020 ruling in Bostock v Clayton County, where “the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex” (“U.S. Department of Education Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity” 2021).


Before this, President Obama asserted that Title IX protects transgender students in his 2016 “Dear Colleague” letter, which provided formal Title IX guidance, including “ school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity” (“Dear Colleague Letter on Transgender Students” 2016). However, a federal judge in Texas halted the guidance a few months after the release of the letter, and in 2017 the Trump administration rescinded the 2016 guidance. (Know Your IX asserts correctly that rescinding the guidance just took away clarity around Title IX, but never actually changed the law’s inclusion of transgender students.) Before that, there was significantly more debate about the required context for an incident of the discrimination or harassment of an LGBTQ+ student to fall under Title IX protections. Given that uncertainty, it’s reasonable to conclude that fewer LGBTQ+ students reported incidents of victimization then than they do now.


The Department of Education keeps a list of recent federal court decisions defending LGBTQ+ student rights, along with other relevant court filings, here.





Recent Updates and Guidance Revisions


While the language of Title IX has not changed, guidance from the U.S. Department of Education and rulings by the Supreme Court can have a large impact on the interpretation and broad application of Title IX in schools. In this section, I’ll be sure to post any major changes or updates that would impact LGBTQ+ students.


  • Anticipated March 2024: Watch for much-anticipated final Title IX guidance to be released by the Biden administration’s Department of Education. The guidance is expected to formalize the full protection of LGBTQ+ students under Title IX and, separately, to address the complex topic of trans students’ participation in athletics. The guidance was originally expected in October 2023, but the DOE delayed its release, saying they needed more time to consider the public comments submitted on their website.

  • October 2023: The National Women’s Law Center published this open letter to the Department of Education calling on them to update the rules right away. Among many concerns with the timeliness of the guidance, the NWLC is concerned that delayed Title IX guidance will encourage schools to wait until the next school year to update their processes to stay in compliance.

  • April 2023: The U.S. Department of Education releases a separate draft of a Title IX rule change addressing transgender student participation on school athletic teams.

  • June 2022: The U.S. Department of Education releases proposed Title IX guideline changes, including the formal protection of LGBTQ+ students, and invites public comments.



Other Title IX Resources


Want to keep digging into Title IX?







One last thing! Want to keep up with a group of college counselors advocating for the rights of LGBTQ+ students, including those harmed by Title IX-exempt religious colleges? Follow us at IECs for Human Rights on LinkedIn.



 

Robert Powers (he/him) is the founder of College Torch and a college consultant who specializes in helping LGBTQ+ students discover and apply to safe, happy, supportive colleges. If you're the parent of an LGBTQ+ teen or college student, you can join College Torch's Parents of LGBTQ+ College-Bound Students community on Facebook.





You can also find Robert on LinkedIn.


Robert loves researching and discussing Title IX and Title IX exemptions, but he is not a lawyer. The information in this article should not constitute legal advice. Always make sure to consult a lawyer before taking any legal action or filing a Title IX complaint or lawsuit.



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