Transgender and Title IX

The U.S. Department of Education established the Title IX guidelines back in 1972. This educational amendment was intended to prevent and properly respond to any alleged acts of sexually-based discrimination. Current enforcement is handled by the Office of Civil Rights (OCR). Academic institutions that fail to satisfy the requirements may become ineligible for key federal funding.

The provisions of Title IX continually evolve; therefore, students that face such allegations should promptly seek assistance from a seasoned student rights attorney that remains abreast of any changes to guidelines. Examples of the types of actions that are prohibited under Title IX include the following:

  • Sexual harassment: These are actions that create a hostile educational environment for the victim. Examples may include inappropriate advances or requests for sexual favors.
  • Sexual violence: These are physical acts such as rape committed against unwilling victims that may have criminal implications. The victims may not have consented to engage in a sexual-related activity. This also applies to situations where a victim is legally incapable of consenting. For example, victims may be too young to legally consent, have been under the influence of drugs or alcohol, or be intellectually impaired.
  • Gender-bias: Often there is verbal abuse or harassment that creates an intimidating atmosphere. Harassment may involve promoting inappropriate stereotypes that are “based on a student's actual or perceived sex.”

Transgender Identity

According to the Gay and Lesbian Alliance Against Defamation (GLAAD), the term transgender refers to an individual whose gender identity “differs from the sex they were assigned at birth.” Gender identity refers to a person's sense of being male or female. These individuals are often categorized as being a part of the lesbian, gay, bisexual, transgender, and questioning or queer (LGBTQ) community, which makes up approximately 10% of the undergraduates at the nation's colleges and universities.

Gender identity is often mistaken with what is a person's sexual orientation, which describes the gender(s) that someone is attracted to.  A transgender individual may have a sexual orientation such as gay, straight, bisexual, etc. Some transgender people attempt to physically transform their body to coincide with their gender identity through surgery, hormonal therapy, choices in attire, and more.

Discrimination Against LGBTQ

Those who are transgender or self-identify as being a part of the LGBTQ group have traditionally been among those most likely to endure discrimination. This largely results from perceptions that they maintain an alternative lifestyle that does not conform to established notions of masculinity or femininity. The OCR has affirmed that Title IX protections apply to all members of an institution's educational community.

The Obama Administration indicated that regarding Title IX, that an individual's gender or sex was based on their chosen identity rather than their biological gender. In 2016, a federal court in Texas interpreted sex as being determined biologically. Thus far, the Department of Education and Department of Justice have not specifically suggested anything contrary to the Texas definition; however, they reiterated that LGBTQ students are protected from "discrimination, bullying, or harassment" regardless.

Students within the LGBTQ community that are accused of acts including sexual harassment or assault that violate Title IX sometimes feel more vulnerable or isolated. These feelings may result from premature judgments that are the result of underlying false stereotypes that exist. An LGBTQ respondent may interpret that administrators and peers unfairly make assumptions of guilt that result from subconscious characterizations that linger; therefore, promptly retaining an experienced attorney-adviser is recommended.

Recent Title IX Ruling Involving Transgender Student-Athletes

Several female student-athletes in Connecticut accused the state's Interscholastic Athletic Conference of impeding their opportunity to fairly compete in track and field competition that potentially hindered their ability to secure athletic scholarships that could allow them access to education. The complainants felt that allowing transgender individuals, that are biologically men, to compete in female competition violated their rights in a gender-based way. They contended that the transgender student-athletes have a physiological advantage in the competition that unfairly deprives them of competing on "equal athletic footing."

U.S. Attorney William Barr summarized the findings of the court. He recognized the importance of accommodating individuals regardless of gender or self-identified gender and maintaining equality within scholastic athletics for males and females. The court agreed with the complainants that allowing individuals that are biologically men to compete in exclusively female competition may deprive them of opportunities and was "fundamentally unfair."

Federal Data Regarding LGBTQ Rights and Discrimination

The Office of Disease Prevention and Health Promotion (ODPHP) has compiled data indicating that this population segment is subject to “oppression and discrimination” that has a significant impact as follows:

  • Evidence of discrimination extends to prevent access to employment, housing, and medical insurance
  • There is a shortage of programs that are appropriate for LGBT youth
  • The problem of school bullying has yet to be properly addressed, which is impacting emotional and mental health
  • A lack of family and social acceptance contributes to a lack of personal safety and psychological problems that are associated with substance abuse and suicide.

Importance of Retaining Knowledgeable Advisory Representation

Pursuing higher education is a commitment that requires significant time and potentially substantial financial resources. In today's competitive academic environment, institutions are well-aware of the importance of maintaining an excellent image and reputation. Administrators tend to have lofty expectations and a desire to swiftly resolve any matters associated with sexual misconduct.

Transgender students faced with allegations of violating Title IX provisions will likely be the subject of an investigation, which may be conducted by individuals with some preconceived notions that could hinder your ability to be treated equitably. Potential bias coupled with the pressure to complete the process could result in their taking "shortcuts" or somehow failing to properly recognize the rights of accused parties under federal guidelines.

Seasoned Attorney-Adviser for Title IX Actions at Colleges and Universities

Those who are facing allegations of misconduct related to Title IX should promptly seek assistance from a lawyer that is familiar with this unique area of professional practice. Clients of the Lento Law Firm can expect strategic guidance geared toward achieving a positive outcome.  Contact the office today at (888) 535-3686 for more information.

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