Intersection of Title IX and LGBTQ+ Rights: Part Two

In the last article, we discussed the history of protections under Title IX for LGBT students and employees.  Today, LGBTQ+ rights in schools are a hotly contested issue, particularly with respect to K-12 institutions, religious institutions, and college-level sports.  This article addresses the impact and intersection of Title IX and LGBTQ+ rights in modern campuses. 

Title IX Rights for LGBTQ+ K-12 Students

Often when we think of Title IX, we think of colleges.  Title IX rights, however, extend to any individual attending a school that receives federal funding.  This includes K-12 schools receiving federal funding.  A good rule of thumb is, “If a school takes a dime [of federal funding], they must abide by Title IX.”  It is also important to note that not every K-12 school accepts federal funding.  According to the National Center for Education Statistics, in the school year of 2018 to 2019, federal funding accounted for only 8% of educational funding for elementary and secondary public schools across the United States.

Assuming that a specific K-12 school receives federal funding, the school must extend Title IX rights to its students.  Under the Department of Education’s Notice of Interpretation in response to Bostock v. Clayton County—as described in the previous article—Title IX protections extend to LGBTQ+ students, protecting them from discrimination and harassment on the basis of their sexual orientation or gender identity. 

Today, political discourse surrounds whether students in the K-12 age range are old enough to identify themselves as LGBTQ+.  In states such as Florida and Texas, legislators have raised concerns that teachers could be “grooming” young students into identifying as LGBTQ+ by teaching about LGBTQ+ issues. 

If a K-12 student complains about experiencing harassment because they stated to other students that they are LGBTQ+, are they still protected if the school does not agree the child has the capacity to identify as LGBTQ+?

The short answer is, “Yes, these students are still protected under Title IX.”  The long answer is that there is no requirement that LGBTQ+ students meet an objective test of whether or not they are “actually” LGBTQ+.  Rather, if these students are harassed or discriminated against based on a perception that they are LGBTQ+, schools are required to take action under Title IX.  In 2000, the Department of Justice filed an amicus brief in support of a male student who claimed that his school failed to prevent ongoing and severe sexual harassment by his peers based on his actual or perceived sexual orientation in Putman v. Board of Sumerset Independent School.  In this brief, the Department of Justice clarified that Title IX prohibits harassment based on “actual or perceived” sexual orientation. As such—even as disagreement mounts on whether young students are “actually” LGBTQ+—K-12 students harassed or discriminated against based on their perceived sexual orientations or gender identities are protected under Title IX.  

Title IX Rights for LGBTQ+ Students in Religious Schools

Another question arising from the landmark Bostick v. Clayton County case is whether religious schools with religious objections to supporting LGBTQ+ identities are required to abide by Title IX’s protections for LGBTQ+ students.  Although not all religious schools receive federal funding, some schools are permitted to use federal funds so long as the funds are not used to support “inherently religious” activities.  These religious schools that receive federal funding are subject to Title IX. 

If a private, religious school believes that prohibiting discrimination based on sexual orientation or gender identity would violate their religious tenants, they may file for an exemption with the Department of Education. According to the Department of Education, “Title IX does not apply to an educational institution that is controlled by a religious organization to the extent that the application of Title IX would be inconsistent with the religious tenants of the organization.” As of March 2019, the Office for Civil Rights has granted 333 religious exemption applications, making 277 institutions who receive federal funding exempt from Title IX.   

If a school has been granted a religious exemption, may it really allow discrimination against LGBTQ+ students? In some circumstances, the answer is “yes.”  To clarify, even if a school has a religious exemption to Title IX, they are still subject to state and local laws prohibiting discrimination against students and employees.  Many states and localities, however, do not have such laws that prohibit discrimination on the basis of sexual orientation or gender identity.  As a result of these religious exemptions to Title IX, many LGBTQ+ students have been legally expelled from religious institutions because of their sexual orientations and gender identities.  In one extreme example, a student of Grace University was expelled for engaging in a lesbian relationship and billed for $6,000—a percentage of the scholarship she had been awarded to attend the university.  

Title IX Rights for LGBTQ+ Students Participating in College-Level Sports

Another issue up for debate in the modern Title IX landscape is whether colleges subject to Title IX are required to allow transgender students to participate in college sports teams designated to a particular gender.  In particular, the issue is whether colleges must allow transgender women to participate in all-female sports teams.

At this time, there is no short answer to this question.  Currently, transgender students are banned from participating in gendered sports teams in 19 states. Additionally, neither the Supreme Court of the United States nor the Department of Education has ruled on whether Title IX protections from discrimination extend to transgender students who wish to participate in gender-specific sports teams. By one argument, transgender students must be allowed to participate in sports teams because Title IX prohibits discrimination based on gender identity.  By another argument, allowing transgender students to participate in sports would violate Title IX because it “denies” cisgender students the opportunity to succeed when they are competing against transgender athletes.

Regardless of where the law falls on this issue over the next 50 years, the past 50 years of Title IX have certainly had an impact on the lives of LGBTQ+ students in the United States.