The federal law that protects students from sex discrimination, Title IX, also protects transgender students, the U.S. Department of Education's Office for Civil Rights formalized in new guidance issued Tuesday.
In new guidance from education officials on the topic of sexual violence in schools, the Department of Education, for the first time, made clear its position that transgender discrimination in schools is included under what it considers as sex-based discrimination under Title IX of the Education Amendments of 1972.
"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," said Catherine E. Lhamon, assistant secretary for civil rights, in a statement. "The Office for Civil Rights stands ready to enforce this core principle to ensure all students' safety in schools."
The move follows a 2013 settlement in the case of a California transgender student who faced discrimination as a fifth grader at his public school in which the departments of Education and Justice viewed the discrimination under Title IX. The 2013 settlement in the case was evidence of the department's policy position on the question.
"The Department of Education is now making explicit, as a matter of policy and an interpretation of the law, what was implicit in the 2013 settlement," said Harper Jean Tobin, director of policy at the National Center for Transgender Equality. "While that settlement was historic, it applied to one school district — this guidance applies to all schools, colleges, and universities that are covered by Title IX. This sends a much clearer message to educators and students are protected and can report discrimination wherever they live."
Specifically, education officials say in the guidance that sex-based discrimination claims under Title IX of the Education Amendments of 1972 includes discrimination against transgender students, stating in part, "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."
Advocates at the National Center for Transgender Equality have been pushing for the department to formalize the position in guidance and hailed the development as a "milestone" after a number of legal cases have found that existing prohibitions on sex discrimination include discrimination based on gender identity and transgender status.
Tobin said the guidance is "a breakthrough for transgender students" who face hostility and discrimination at school. "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."
The guidance, though, does not address specific examples of discrimination based on gender identity, but Tobin and other advocates suspect education officials will clarify that in future guidance — especially as the department and other agencies understand what discrimination based on gender identity means and what it looks like. "They didn't speak to a lot of specific situations, but they said that gender identity-based discrimination is prohibited and anyone experiencing that should file a complaint with the department," Tobin said.