The use of Title VII to prohibit employment discrimination based on gender identity has become widespread, both in the courts and through the EEOC’s and the Justice Department’s decisions in Macy v. Holder. Now the Obama Administration is extending its reliance on another sex discrimination law, Title IX, to protect trans students from discrimination by school districts. The new consent agreement requires a California school district to provide access for a FTM teenager to all facilities designated for boys.
School districts cannot discriminate against transgender students without violating federal law, Education and Justice department officials stated Wednesday in a settlement agreement resolving a complaint filed on behalf of a transgender student who faced discrimination in middle school.
The agreement is the latest mark of a growing legal and administrative trend to interpret bans on sex discrimination as including discrimination based on gender identity and transgender status, and Wednesday’s settlement applied that definition to Title IX of the Education Amendments of 1972, the law that bans sex discrimination in education.
“This is a natural extension of the way courts and administrative agencies are interpreting sex-stereotyping. This resolution shows the federal government is continuing to import the sex-stereotyping definition as applied elsewhere, specifically Title VII [of the Civil Rights Act], into the Title IX context,” National Center for Lesbian Rights staff attorney Asaf Orr, who represented the student, told BuzzFeed.
Under the settlement agreement announced Wednesday, the Arcadia Unified School District in California will make several system-wide changes to address anti-transgender discrimination, but officials also will change the way they treat the transgender male student who brought the complaint — steps aimed at “treat[ing] the student like all other male students” in the district.
In announcing the agreement, the Justice Department said that the settlement includes a requirement that the district will amend its policies “to reflect that gender-based discrimination, including discrimination based on a student’s gender identity, transgender status, and nonconformity with gender stereotypes, is a form of discrimination based on sex.”
The Justice and Education Department officials note in a report dated Wednesday closing the complaint that “[t]he Student, who was assigned the female sex at birth, identified as a boy from a very young age.” The student is now in ninth grade.
After “fac[ing] some harassment from classmates because of his masculine clothing and hairstyle, which did not conform to female stereotypes” in fifth grade, the student and his family began his gender transition, including adopting a traditionally male first name, using male pronouns and continuing to present outwardly as a male in his clothing and hairstyle.
“According to the District and the Student’s family, the Student’s classmates, notified of the transition by their teacher, accepted him as male immediately, and the harassment of the Student ceased,” the government officials wrote.
The complaint, in fact, only came about because Arcadia school district officials allegedly barred the student from using male restroom and locker room facilities and refused to let him stay in a cabin with other males during an overnight camping trip sponsored by the school district during his sixth and seventh grade years. Instead, the student alleged, the district “requir[ed] instead that he stay in a cabin separate from all of his classmates with his parent or another adult chaperone.”
Although the Justice and Education department officials note that “[t]his letter is not a formal statement of [the Education Department’s Office of Civil Rights’s] policy and should not be relied upon, cited, or construed as such,” they nonetheless explain the legal underpinning of their investigation.
“In the employment context, federal courts and administrative agencies have applied Title VII of the Civil Rights Act of 1964, the federal law prohibiting sex discrimination, to discrimination against transgender individuals based on sex, including nonconformity with sex stereotypes and gender identity,” they wrote. Among other cases, the officials cited Vandy Beth Glenn’s case successfully challenging anti-transgender discrimination in Georgia and Mia Macy’s case resolved recently by the Justice Department after the Equal Opportunity Commission had decided in April 2012 that Title VII’s sex discrimination ban includes anti-transgender discrimination.
In resolving the dispute against Arcadia, the officials noted that “[c]ourts rely on Title VII precedent to analyze discrimination ‘on the basis of sex’ under Title IX,” and concluding, therefore, that “[a]ll students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX ….”
The explicit transgender protection is an expansion of the terminology, if not reasoning, from that used by the Justice and Education departments in the resolution of an earlier case against the Anoka-Hennepin School District in March 2012. In that case, the officials primarily referenced “sex-based harassment,” with a few references to “gender nonconformity” but no specific references to the law providing explicit protection for discrimination based on transgender status. Even then, however, the Justice and Education departments noted that “’[g]ender-based harassment’ means non-sexual harassment of a person because of the person’s sex, including harassment based upon gender identity and expression.”
Reflecting the rapidly changing environment for transgender protections under sex-discrimination laws, in an October 2010 letter to schools, the Education Department stated, even less specifically, that “it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.”