Warner, Kaine Urge Dept. of Education to Clarify Legal Protections for LGBT Students Across the Country

WASHINGTON – In response to recent attempts of legislatures in states like North Carolina to limit the rights of LGBT people and transgender students, U.S. Sens. Mark R. Warner (D-VA) and Tim Kaine (D-VA), along with 38 Senate Democrats, urged the Department of Education to release comprehensive guidance on the full scope of protections afforded to transgender and gender non-conforming students in our middle schools, high schools, and colleges.

In recent years, both the Department of Education and the Department of Justice have clarified that Title IX – which prohibits any educational institution receiving federal funding from discriminating on the basis of sex – also prohibits discrimination on the basis of gender identity, including in single-sex classrooms and in cases of sexual harassment. In a letter to the Department of Education, the Senators asked for further clarification on what Title IX means for transgender and gender non-conforming students, who continue to face a disproportionate amount of discrimination compared to their peers.

“We strongly believe that it is our responsibility—not just as senators, but as adults—to protect our children and young people, and to help them flourish,” wrote the Senators. “We applaud and thank the Department of Education, as well as the Department of Justice, for sharing that goal, and for their commitment to equality and work in support of LGBT students. We respectfully request that the Department complete that work by issuing clear, comprehensive guidance.”

The letter was also signed by Sens. Al Franken (D-Minn.), Tammy Baldwin (D-Wis.), Harry Reid (D-Nev.), Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Barbara Boxer (D-Calif.), Sherrod Brown (D-Ohio), Maria Cantwell (D-Wash.), Tom Carper (D-Del.), Bob Casey (D-Pa.), Chris Coons (D-Del.), Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.), Kirsten Gillibrand (D-N.Y.), Martin Heinrich (D-N. Mex.), Heidi Heitkamp (D-N. Dak.), Mazie Hirono (D-Hawaii), Amy Klobuchar (D-Minn.), Patrick Leahy (D-Vt.), Ed Markey (D-Mass.), Claire McCaskill (D-Mo.), Robert Menendez (D-N.J.), Jeff Merkley (D-Ore.), Barbara Mikulski (D-Md.), Chris Murphy (D-Conn.), Patty Murray (D-Wash.), Gary Peters (D-Mich.), Jack Reed (D-R.I.), Bernie Sanders (I-Vt.), Brian Schatz (D-Hawaii), Chuck Schumer (D-N.Y.), Jeanne Shaheen (D-N.H.), Debbie Stabenow (D-Mich.), Tom Udall (D-N. Mex.), Elizabeth Warren (D-Mass.), Sheldon Whitehouse (D-R.I.), and Ron Wyden (D-Ore). It was also supported by some of the country’s top LGBT rights organizations, including the American Civil Liberties Union and the Human Rights Campaign.

A copy of the letter is available here.

May 2, 2016

The Honorable John King
Secretary
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

Dear Secretary King:

As senators committed to ensuring that all students—including lesbian, gay, bisexual, and transgender (LGBT) students—have access to a public education in an environment free from discrimination, we are writing to request that the Department of Education explain the scope of protections afforded to LGBT students under Title IX of the Education Amendments of 1972 (Title IX) and clarify that state laws requiring discrimination against LGBT students run afoul of Title IX and jeopardize states’ and school districts’ continued receipt of federal funding.

Title IX prohibits discrimination “on the basis of sex” [1] in any educational program or activity that receives federal funding—including public primary and secondary schools, public colleges and universities, and private schools and universities that accept student loans or federal funds. While Title IX is widely known for increasing women’s and girls’ participation in sports, this landmark civil rights law guards against sex discrimination in all aspects of educational opportunity, including harassment, housing, admissions and recruiting, and financial aid. Virtually all public schools and public and private colleges and universities in the country receive federal funding from the Department of Education and other federal agencies. Institutions that fall short of their obligations under Title IX risk the suspension or termination of federal funding.

Consistent with caselaw in the area of employment discrimination, both your Department and the Department of Justice (DOJ) have clarified that Title IX’s prohibition on sex discrimination prohibits discrimination on the basis of gender identity. The Department of Education issued guidance clarifying that Title IX prohibits gender-based harassment of students,[2] including discrimination against transgender and gender non-conforming students,[3] and failure to respect transgender students’ gender identity when operating single-sex classes.[4] Both DOJ and the Department of Education have applied this interpretation of Title IX to support transgender students challenging school policies banning them from using the restroom or locker room that corresponds with their gender identity.[5] DOJ explained that “[t]reating a student adversely because the sex assigned to him at birth does not match his gender identity is literally discrimination ‘on the basis of sex.’ . . . Prohibiting a transgender male student from using boys’ restrooms, when other non-transgender male students face no such restriction, deprives him not only of equal educational opportunity but also ‘of equal status, respect, and dignity.’”[6] Recently, the U.S. Court of Appeals for the Fourth Circuit agreed with the administration’s interpretation that Title IX protects the rights of transgender students to use sex segregated facilities that are consistent with their gender identity—a significant victory.[7] The Departments’ interpretation and enforcement of Title IX is consistent with courts’ and federal agencies’ interpretations of other sex discrimination statutes, including Title VII.

However, despite the important steps the federal government has taken to secure equality for transgender and gender non-conforming students, state legislators are pursuing policies that seek to halt this progress. North Carolina’s recent enactment of House Bill 2, a discriminatory measure that forbids transgender students appropriate access to bathrooms and locker rooms, provoked a swift backlash from business leaders, the National Basketball Association, the National Collegiate Athletic Association, and even the leading Republican candidate for president. Nonetheless, state legislators in Tennessee, Kansas, South Carolina, and Minnesota continued to push similar measures.

In the face of ongoing legislative assaults on LGBT students, and transgender students in particular, we remain concerned that the Department of Education has not yet further clarified that schools permitting discrimination against LGBT students to continue unabated risk losing their eligibility for federal funds. Although the Department of Education has stated that Title IX covers gender identity discrimination, including for single-sex classrooms and sexual harassment, it has not yet provided specific guidance to schools on how these protections apply in the myriad other circumstances experienced by transgender students in schools. Last week, the New York Times reported that the Department of Education has drafted guidance for school administrators on their obligations to LGBT students under Title IX.[8] We urge the Department to release that guidance now.

We strongly believe that it is our responsibility—not just as senators, but as adults—to protect our children and young people, and to help them flourish. We applaud and thank the Department of Education, as well as the Department of Justice, for sharing that goal, and for their commitment to equality and work in support of LGBT students. We respectfully request that the Department complete that work by issuing clear, comprehensive guidance.

Sincerely,

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