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Settlement favoring transgender student has implications for higher ed

Equal Access at All Levels
July 29, 2013

Last week's settlement between the U.S. Education Department's Office for Civil Rights and a California school district may have been issued at the K-12 level, but the newly clear message that federal laws prohibit discrimination based on gender identity applies to colleges too, experts say.

The U.S. Departments of Justice and Education jointly determined that California's Arcadia School District violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination, by barring a transgender student from sex-specific facilities and activities. All schools and colleges receiving federal funds are obligated to comply with Title IX or risk losing that funding.

In a 2010 "Dear Colleague" letter, OCR said schools must work to prevent gender nonconformity discrimination -- when, for example, a student who is assigned a male sex at birth but does not act as a stereotypical boy (maybe by using female pronouns, or wearing dresses) is bullied.

But this resolution agreement takes that a step further by covering gender identity discrimination -- when the same student described above is barred from using the female restroom. She is not being excluded because she doesn't act like a stereotypical boy and is therefore nonconforming, but because she has a transgender gender identity; her identity doesn't match the sex she was assigned at birth.

The settlement is also a first in that it deals with access to educational programs, facilities and activities -- which is really what Title IX is all about -- whereas the 2010 letter related more to school climate, harassment and bullying. The issue is not hypothetical; colleges report that they are enrolling more transgender students who are requesting various services and policies -- anti-bias rules, access to bathrooms, ability to join athletic teams -- and at some institutions, they haven't been satisfied with the response.

"It actually is groundbreaking," Erin Buzevis, the law professor at Western New England School of Law who runs the Title IX Blog, said in an e-mail. "By taking one such case, OCR signals its willingness to take similar cases in the future, and there's no reason to think those cases wouldn't also include college students."

According to the Arcadia complaint, middle school administrators prohibited a biologically female middle school student who had identified as male "since a very young age" from using boys' bathrooms and locker rooms, and on a camping trip, made the student stay in a cabin alone with an adult chaperone rather than in the boys' cabin. Further back, in elementary school, the student was teased and bullied based on his appearance -- the settlement agreement notes that one classmate referred to him as "it" -- and placed in a girls' cabin on another camping trip.

Generally, colleges should certainly keep in mind that OCR has said Title IX covers gender identity discrimination and access, said Asaf Orr, attorney at the National Center for Lesbian Rights, which represented the student. But he pointed to a few specific points in the settlement that administrators might want to look at more closely.

First are their nondiscrimination policies, which the settlement suggests should cover gender identity. Also as a matter of policy, student records should always be kept confidential -- if, for example, the student goes by a name other than his or her birth name, the student's school identification should reflect that and any records saying otherwise should be kept private.

"They may be affecting their admissions pool if they don't have these policies in place," Orr said. "Students look for those kinds of things when they are looking to apply for schools."

Administrators should also consider training their students, faculty and staff on gender sensitivity as it relates to Title IX, a requirement of the settlement agreement, Orr said, noting that students in particular have a huge effect on institutional climate.

Finally, OCR required the school district to hire a consultant with expertise in child development and transitioning youth to help address these issues and make sure the changes are thorough and lasting. Colleges might want to do something similar, Orr said.

Whether for legal precautions or not, anything to raise awareness of transgender students would be a good idea, said Shane Windmeyer, executive director and co-founder of Campus Pride.

"I have administrators who have no understanding or perspective on what it even means to be transgender," Windmeyer said. "Sadly, the state of higher education for trans students is grave; it's oftentimes reckless and dangerous because we don't understand as administrators what we're talking about."

Windmeyer noted cases where students have lost jobs after they were outed, repeatedly been called by the incorrect name and gender pronoun (even after asking professors to stop), and been prohibited from using bathrooms. One student who was bullied and harassed and had no alternative to campus housing committed suicide.

Only 100 four-year campuses have gender-inclusive housing, Windmeyer said. About 9 percent of colleges cover gender identity in their nondiscrimination policies. (Campus Pride maintains an index of colleges with resources for transgender students.)

"Really, we're only talking about 10 percent -- sometimes less -- that do anything remotely trans-inclusive," he said. "It's 1960 for trans young people."

Jorge Valencia, executive director of the Point Foundation, which awards scholarships to lesbian, gay, bisexual, transgender and queer students who are active in their communities, said many of the organization's recipients have experienced discrimination. One of them, Jacob, who identifies as male but was born biologically female, was forced to practice with the girls' swim team in high school. In college, he lived at home because the campus would not accommodate him in the residence halls. After transferring to "a large, Cal State school with a more embracing attitude toward transgender individuals," he still lacked access to gender-neutral bathrooms and other facilities that his peers used with no trouble at all.

"The problems are very real and need to be addressed; both through laws such as Title IX, and by universities and colleges that need to make a greater effort to provide an equitable higher education experience for people of all gender identities and expressions," Valencia said in an e-mail. "This [OCR] development is a positive step toward inclusion and equality for all."

 

 

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