Title IX: Gender Identity & Gender Expression

Author: Association of Title IX Administrators
Published: Saturday 10th October 2015
Summary: Importance of protection for gender nonconformity, gender identity, gender expression, transitioning and transgender status conferred by Title IX of the Education Amendments.


ATIXA stresses the importance of protections for gender nonconformity, gender identity, gender expression, transitioning and transgender status conferred by Title IX of the Education Amendments of 1972. Allegations of such discrimination require a civil rights, equity-based response from any educational program or activity receiving federal financial assistance. ATIXA strongly endorses and supports these protections and encourages their full implementation within all schools, colleges and universities subject to Title IX.

Because the verbiage of Title IX itself is broad in its protections, the Department of Education's Office for Civil Rights' (OCR) interpretation of the law has evolved over time, progressively focusing on employment discrimination, equity in athletics, sexual harassment and sexual violence. OCR is now widening the Title IX lens to focus on the rights of gender-nonconforming and transgender individuals to ensure their access to the full benefits of federally funded educational programs.

As early as 2001, OCR recognized that bullying and harassment of LGBT or gender-nonconforming students, which is gender-based harassment - meaning harassment or bullying because a student does not conform to stereotyped notions of masculinity or femininity - is covered by Title IX. In fact, OCR's October 26th, 2010 Dear Colleague Letter spoke specifically to the protections Title IX affords regarding harassment of LGBT individuals.

But OCR has not yet clarified whether Title IX covers discrimination on the basis of actual or perceived gender identity. This is an important distinction. ATIXA posits that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on sex." In that case, evidence of gender stereotyping would not be necessary in order to establish that sex discrimination occurred against a transgender person. This is a position that the Equal Employment Opportunity Commission is now starting to take more broadly, and one which ATIXA hope OCR will follow.

Statistics published by the Transgender Law Center indicate that an estimated 2 to 5% of the population is transgender, meaning they experience some degree of gender fluidity. Recent research from the Human Rights Campaign, published as a study entitled Growing up LGBT in America, reflects a growing acceptance of LGBT youth by their peers, while simultaneously showing that LGBT youth are more likely than their peers to experience verbal harassment, exclusion and physical attacks at school. In addition, 78 percent of transgender Americans say they have experienced workplace discrimination at some time.

A recent study of 150,000 college students by the Association of American Universities (AAU) found:

ATIXA supports gender nonconforming and transgender individuals enrolled and/or employed by schools and colleges and welcomes the diversity they bring. ATIXA hopes that members will endeavor to assure that school and college communities will be safe, hospitable and supportive for those gender nonconforming and transgender individuals within our communities.

Here are several starting steps ATIXA encourages its members to take:

ATIXA hopes that soon, OCR and the courts will provide clear guidance that discrimination based on gender nonconformity, gender identity, gender expression and transgender status constitutes sex or gender discrimination under Title IX, requiring a civil rights, equity-based response from any educational program or activity receiving federal financial assistance.


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