Title IX and LGBTQ+ Rights: Ensuring Inclusivity and Non-Discrimination

August 4, 2023
Anna E. Bullock, Susan Stone and Kristina Supler
LGBTQ+ Rights

Title IX of the Education Amendments of 1972 (Title IX) is a federal statute that prohibits discrimination on the basis of sex in the context of education. The statute is most commonly associated with athletics, and most know that Title IX requires equal funding and opportunities to be provided to both men’s and women’s athletic teams at public educational institutions. The application of this law is much more expansive and nuanced, however. The United States Department of Education (DOE) has, since June of 2021, enforced Title IX as applied to LGBTQ+ individuals, prohibiting schools, colleges, and universities from discriminating against students and employees on the basis of gender identity and sexuality. In practice, this means that LGBTQ+ students may challenge policies and decisions of colleges and universities which have the effect of treating them differently and less favorably than their heterosexual and cisgender counterparts, providing LGBTQ+ students with recourse to challenge both overt discrimination and the provision of fewer or worse opportunities, services, and/or supports.

Understanding the Evolution of Title IX and LGBTQ+ Rights

In June of 2020, the Supreme Court issued a landmark decision in Bostock v. Clayton County, which prohibited LGBTQ+ discrimination in the workplace on the basis of Title VII of the Civil Rights Act, with implications in other areas of the law involving LGBTQ+ discrimination on the federal level. Following Bostock, in June of 2021, The DOE issued a Notice of Interpretation clarifying that Title IX’s prohibition of discrimination on the basis of sex also includes:

  • discrimination based on sexual orientation.
  • discrimination based on gender identity.

The case heralded a new era of federal discrimination jurisprudence, including within the Title IX space.

Challenges Faced by LGBTQ+ Individuals in Schools

LGBTQ+ individuals face many challenges in all aspects of public life, including in the education context. Anti-LGBTQ+ discrimination is still prevalent in American culture, with LGBT individuals facing higher rates of violent victimization, including rape, sexual assault, and physical assault, according to a study by the UCLA School of Law. Athletics restrictions are another dynamic topic within the intersection of Title IX and transgender rights, with transgender athletes facing a patchwork of bans and restrictions on athletics participation. (KJK has previously written on the import of proposed changes to Title IX for transgender athletes.) Transgender teens face a higher risk of sexual assault in schools as a result of restricted bathroom access, according to another study by Harvard University’s T.H. Chan School of Public Health. These and other challenges faced by transgender and LGB students fall under the umbrella of Title IX.

Protections and Supports for LGBTQ+ Students Under Title IX

Title IX requires educational institutions to employ a “Title IX Coordinator,” a designated individual who fields complaints and grievances from students and school employees regarding conduct that could ultimately constitute discrimination in violation of Title IX. These complaints may concern sexual harassment, overt discrimination, sexual assault, or the creation of a hostile educational environment on the basis of one’s gender or sexuality. For example, if a transgender student is consistently and purposely misgendered by a professor during a class, that student may have a basis to lodge a Title IX complaint with the school. The conduct would be considered discrimination if it is “pervasive” and “severe.” Once that complaint has been made, the school is required to act in a manner that is not “deliberately indifferent,” a legal term of art requiring that the school actively respond to complaints of harassment and discrimination. This active response could take the form of launching an investigation, having a meeting with the accused faculty member and student, issuing a warning, or issuing formal disciplinary action against the individual responsible.

Students facing discrimination may also need help beyond the organizational level, and can take advantage of several of the resources available through the United States Department of Education’s Resources for LGBTQI+ Students. This site has guidance to filing a complaint with the Office for Civil Rights, which can launch an investigation of an institution alleged to be in violation of its responsibilities under Title IX or other non-discrimination statutes.

Promoting Equity through Advocacy and Collaboration

Despite Title IX’s requirements to ensure equal access to education and related services for LGBTQ+ students, the path to equal access can be fraught with challenges. Advocacy is critical to ensure that students are guided through the Title IX process when they have faced discrimination, both at the organizational level and beyond. Many families hire attorneys or advocates specially trained to manage the challenges and pitfalls of Title IX. Once administrative pathways have been exhausted, the time may be right for litigation.

If you or your child have been the victim of anti-LGBTQ+ discrimination in an educational setting, KJK’s Student and Athlete Defense attorneys can help. For more information or to discuss further, please contact Susan Stone (SCS@kjk.com; 216.736.7220), Kristina Supler (KWS@kjk.com; 216.736.7217), or Anna Bullock (AEB@kjk.com; 216.736.7223).