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Can a College Student Be Charged Under Title IX When the Complainant or Respondent is Lesbian, Gay, Bisexual, or Transgender (LGBT)?

Posted by Joseph D. Lento | Aug 27, 2017 | 0 Comments

As colleges and universities nationwide continue to encourage diverse learning communities, Lesbian, Gay, Bisexual, and Transgender (LGBT) students have become a prominent presence at many campuses.  For obvious reasons, many  gay and lesbian students have a difficult time coming out in high school, but college is often a time for LGBT students to explore and celebrate their identity. 

When it comes to finding a school that is LGBT-friendly, it is not so much whether colleges and universities give LGBT students special treatment as much as it is about how these colleges and universities teach acceptance and understanding for all people.  Locally, the following schools are known for being welcoming to LGBT students:

Challenges Faced by LGBT College Students

Although college is a time for academic, intellectual, and personal growth, it is not without its challenges.  LGBT college students face many of the same challenges that face straight college students, but LGBT college students face many more challenges yet due to both who they are as people, and others' acceptance of who they are, or lack thereof. Unfortunately, for LGBT students and their parents, high rates of sexual harassment and sexual violence are reported at many schools, and such harassment and violence can unfortunately come from straight or LGBT peers.

One challenge faced by both LGBT students and straight students is the risk of being charged with Title IX violations by their college or university.  Relationships that do not end on good terms, regrettable decisions that may have been misinterpreted by other parties, and countless other scenarios can all cause problems for college students which can put their academic and professional goals in jeopardy.

What is Title IX and how can it affect LGBT college students?

Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. Among other educational institutions, colleges and universities, whether in Pennsylvania, New Jersey, or nationwide, that receive any federal financial assistance will be subject to Title IX policies. The Department of Education Office of Civil Rights is responsible for ensuring compliance with Title IX policies, including how campus disciplinary cases are investigated and adjudicated.

Does Title IX protect LGBT college students?

Title IX protects all college and university students, including lesbian, gay, bisexual, and transgender from sexual discrimination at schools that receive federal funding.  Under Title IX, sexual discrimination at colleges and universities can come in many forms, including, sexual sexual harassment, sexual misconduct, and sexual violence such as rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.

Federal policies are influenced by the fact that any student can experience sexual discrimination or sexual violence: male and female students; straight, lesbian, gay, bisexual, and transgender students, full-time students and part-time students; students with or without disabilities protected under the American with Disabilities Act; and students of different races and national origins.

What is a school's obligation to respond to a Title IX complaint if the case involves a LGBT student?

Because of the expansive scope of federal policies, a college's or university's obligation under Title IX to appropriately respond to Title IX complaints is the same regardless of the sex of the parties involved (or other circumstances as referenced above for example). 

The parties involved in campus Title IX case will generally be the accuser, also known as the "complainant," and the accused, also known as the "respondent."

In some respects, Title IX goes further in protecting lesbian, gay, bisexual, and transgender students than straight students.  The reason for such arguably greater protection is that Title IX's prohibition against sexual discrimination extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.  Any complaint that the Department of Education Office of Civil Rights will accept for investigation, even if not considered to be "traditional" forms of sexual discrimination on college campuses under Title IX, is covered under Title IX, including many challenges that LGBT students specifically face.

In addition, the actual or perceived sexual orientation or gender identity of the parties involved in a Title IX campus disciplinary case, including the complainant and respondent, does not change schools' obligations under Title IX. 

How will a school investigate and resolve Title IX complaints involving a LGBT student?

A college or university must investigate and resolve allegations of sexual violence or any other form of sexual misconduct using the sames procedures and standards that it uses in all complaints involving such claims.

Because LGBT students face difficulties on college campuses that straight students are not subject to, Title IX makes it clear that schools are required to both effectuate and enforce their disciplinary policies in a manner that takes such difficulties into account.

Is a student's "actual" or "perceived" sexual orientation a factor in campus Title IX cases?

Title IX specifically references that campus sexual violence may include anti-gay statements or may be based on a student's actual or perceived sexual orientation.  Understanding that such concerns can arise in cases involving LGBT students (and also cases involving straight students), Title IX requires that such concerns be taken into account when a college or university investigates and adjudicates Title IX complaints in whatever manner that the school uses under standard circumstances (some schools use a "single investigator" model, others use a "hearing panel" model, and others yet use a "blended" model which incorporates elements of both).

As importantly, Title IX requires colleges and universities to take such concerns into account when creating their disciplinary codes for cases involving sexual harassment, sexual misconduct, sexual violence, and so forth.  For example, if a school's policies related to sexual violence include examples of particular kinds of acts that violate the school's prohibition on sexual violence, the school should generally include examples of same-sex conduct, or more specifically, examples of potential conduct affecting LGBT students.

How will a LGBT complainant in a campus Title IX case be treated?

For an accused student and his or her parents, it will be unwelcome to hear that the accuser will be perceived to have, whether accurate or not, greater rights than that of the accused.  Due to the nature of Title IX and how campus disciplinary cases proceed in many instances, having lesser, or tenuous rights at best, is a legitimate concern, especially in light of how much is at stake for an accused student. 

Colleges and universities are expected to provide resources to complainants, and in Title IX cases involving LGBT students, resources specific to the needs of LGBT complainants.  Although schools are expected to  provide culturally competent counseling to all complainants, in cases involving LGBT students, colleges and universities are expected to have counselors and other staff who are responsible for receiving and responding to complaints of sexual violence, including investigators and hearing board members, receive appropriate training about working with LGBT and gender-nonconforming students and same-sex sexual violence.

Is it a level playing field between complainants and respondents in campus Title IX cases?

Aside from the larger question of whether colleges and universities themselves should handle Title IX complaints under the policies and procedures as presently mandated by the Department of Education Office of Civil Rights, it would be difficult to argue that school officials involved in Title IX cases should not have as much training as possible.  The competing concern is the whether the resources provided to complainants, whether LGBT or straight, and more importantly, the general consideration afforded by schools to complainants at the arguable expense of respondents, is appropriate. 

Complainants, whether LGBT or straight, will likely argue that such consideration is necessary to remedy the concerns.  In light of the potential consequences of a finding of responsibility for a Title IX charge, respondents, whether LGBT or straight, will rightfully argue that such consideration is unfair. 

Pennsylvania and New Jersey Title IX Student Defense Attorney

College can be challenging for many students, and not just from an academic standpoint - being away from home; facing the pressure to fit in with dormmates, classmates, and peers; facing high-risk social situations, especially those involving alcohol and/or drugs - these are all challenges to be met and overcome.  Both straight students and LGBT students will potentially face such issues, and most will move forward without any complications.  Some, however, will experience growing pains.  Add to the fact the LGBT students will face additional challenges yet, often due to coming out in college and learning to embrace who they are, and often in an environment that, although at times welcoming, can also be unwelcoming.

College can be difficult enough, and when a student is accused of sexual misconduct, whether it was due to a regrettable decision, an honest mistake, or misinterpretation, an accused student and his or her parents must understand that the path forward can be difficult.  If accused or charged with a Title IX offense, all students, both LGBT and straight, must take the proper steps to defend against the allegations, and such steps must be taken as early as possible.  Accused students and their families should not face such concerns alone - Contact attorney Joseph D. Lento today to learn how he can help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients nationwide. Mr. Lento represents students and others in disciplinary cases and other proceedings at colleges and universities across the United States. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand colleges and universities across the United States, and when necessary, he has sought justice on behalf of clients in courts across the nation. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, is admitted pro hac vice as needed nationwide, and he can help you or your student address school-related issues and concerns anywhere in the United States.

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