What is Title IX?

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Title IX Education Amendments of 1972 ("Title IX") prohibits institutions with educational programs or activities that receive federal financial assistance from excluding, denying benefits to, or discriminating against anyone based on their sex. This includes, among other things, people who experience sexual harassment or sexual assault in schools, but also bullying, unequal access to athletic programs, etc.

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Who is covered under Title IX?

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The institutions covered under Title IX include public primary and secondary schools, but also many post-secondary schools and institutions, charter schools, for-profit schools, vocational rehabilitation facilities, libraries, and museums that receive federal financial assistance. Such financial assistance might include:

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• The use or rent of federal land or property at below market value

• Grant or loan of federal funds made available for:

  • Acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and

  • Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity (or any other entity they choose) like vouchers

• Federal training

• A loan of federal personnel (“borrowing” public school teachers or other public employees to fill private school vacancies)

• Subsidies, such as participation in the National School Lunch Program or E-rate Program (which promotes universal access to the Internet and other technologies)

• Other contracts or arrangements with the intention of providing assistance, except for a contract of insurance or guaranty

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Are transgender and gender-nonconforming (TGNC) students covered under Title IX?

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The short answer: YES. Now the long answer. For years, many federal courts have ruled that Title IX protects TGNC students, finding that TGNC students experience sex discrimination when they are perceived as failing to conform with sex or gender stereotypes. Then came the case of trans male student Gavin Grimm. In that case, Gavin had come out as trans to his Virginia public high school and asked to use the boys' bathrooms and locker room. The school initially agreed, but then the school board buckled under pressure from upset parents of cisgender students and reversed the school's trans-affirmative policies. Gavin sued. In 2016, during the course of Gavin's case, the Dept. of Education issued Guidance on how schools should support TGNC students. The Guidance re-affirmed what Gavin's school had originally allowed him to do. Finally, Gavin's case reached the U.S. Supreme Court, and oral arguments were scheduled for early 2017. But in February 2017, following the 2016 presidential election, the new administration promptly rescinded the Guidance, saying that it did not agree with the previous administration's interpretation of Title IX. Without the Guidance, there was no longer an issue for the Supreme Court to decide. In February 2018 -- almost one year after rescinding the Guidance -- the Dept. of Education announced that it would no longer take action on complaints filed with the Department's Office for Civil Rights (OCR) regarding refused access to restrooms or locker rooms appropriate to a TGNC student's gender identity. Regardless, TGNC students are absolutely protected under Title IX. This is still true, even without the Guidance, even without a determination by the U.S. Supreme Court, and even with the OCR's decision to de-prioritize investigating complaints from TGNC students.

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Are lesbian, gay, bisexual, and queer (LGBQ+) students covered under Title IX?

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The short answer: PROBABLY YES. Like "gender identity" or "transgender status," Title IX does not explicitly include "sexual orientation" as a protected status. However, the U.S. Dept. of Education has interpreted Title IX as protecting all students “regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.” Additionally, Title IX's definition of "sex" is historically linked to the meaning of "sex" under Title VII -- the federal law that prohibits sex discrimination in employment. For several decades, there has been a clear evolution of Title VII's "sex" as including gender identity, transgender status and sexual orientation (see e.g., Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir. 2018) (finding Title VII covered discrimination against a gay male skydiving instructor who was terminated because of his actual or perceived sexual orientation)). This means that there's a strong case to be made for Title IX sex discrimination claims for LGBQ+ students on a theory of "gender-stereotyping" (failing to conform with social expectations of gender or sex).

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How do I file a complaint under Title IX?

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Anyone may file a Title IX complaint (e.g. a student, parent, teacher, community member) with the US Dept. of Education’s Office for Civil Rights (OCR) within 180 days of the last instance of discrimination. OCR has some discretion over what complaints it investigates, and does not investigate every complaint it receives (e.g. it's now declining trans bathroom issues). The complaint process is free, and although it might be helpful, you do not need an attorney to represent you in the process. Learn more about the OCR complaint process here.

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Alternatively, you can file a Title IX claim directly in federal court. You do not have to go through the administrative complaint process with the OCR first (like you do, for example, for Title VII employment discrimination complaints with the EEOC). The statute of limitations for these claims varies state to state, and is three (3) years in New York State. Although you can do it on your own, it is recommended you seek the advice of an attorney before filing a Title IX claim in federal court.

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