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EDUCATION

DISCRIMINATION

This page provides an overview of state and federal rights of transgender and gender-nonconforming (TGNC) and lesbian, gay, bisexual, and queer (LGBQ+) students. It includes  information about how to exercise your rights to make school environments safer and more just for everyone.

If you or someone you know has experienced discrimination in an educational setting (e.g., schools, museums, libraries, etc.) based on any protected status, contact me to discuss your rights and possible remedies.

 

TITLEIX

What is Title IX?

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.

Who is covered under Title IX?

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:

  • 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

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

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.

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

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).

How do I file a complaint under Title IX?

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.

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.

 

equalaccessact

Have you ever tried to start a student group or club, like a Gay-Straight Alliance (GSA), but your school said no?

The federal Equal Access Act (20 U.S.C. §§ 4071 – 4073 (2010)) requires that any secondary school (grades 9-12) that receives federal funds and allows any extracurricular student groups to form and meet outside of class must allow all such student group to form and meet, regardless of the religious, political, philosophical or other content of speech of the groups. In other words, the school can't discriminate against one student group while allowing others to hold meetings on school grounds.

 

federalprivacyrights

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. Part 99) is a federal law that protects the privacy of student educational records at all schools that receive qualifying federal funds. Parents and students who are age 18+ can request to review their records, and also to correct information that is wrong or misleading (e.g., preferred or new legal names, gender markers, etc.). If the school refuses to do it, the parent or student have a right to a formal hearing.

Privacy of students' medical records are also mostly covered under FERPA as part of the "educational records." Most schools are not required to also comply with HIPAA (the Health Insurance Portability and Accountability Act), which only applies to certain entities.

 

federaldisability

rightsADA504IDEA

There are several important federal laws that protect people with disabilities. Many TGNC and LGBQ+ students already have or could benefit from an IEP or 504 plan, leveraging the federal law to put accommodations and safety measures in place to address stress, anxiety, depression, self-harming practices, etc. resulting from bullying, harassment, and discrimination based on actual or perceived sexual orientation, gender identity, gender expression, or transgender status.

 

The Americans with Disabilities Act (ADA) prohibits public and private non-religious schools from discriminating on the basis of disability by excluding the student from fully participating in any school program or activity. Religious/parochial schools are mostly exempt from complying with the ADA.

Section 504 of Rehabilitation Act of 1973 (“504”) prohibits public and private non-religious schools that receive federal funds from discriminating on the basis of disability. "504 plans" are developed to ensure that a child with a disability receives accommodations that will ensure their academic success and access to the learning environment. A student's rights to accommodations under 504 differ significantly if they attend a public versus private school. Again, religious/parochial schools are generally not required to comply with 504.

The Individuals with Disabilities Education Act (IDEA) works to provide a free appropriate public education (FAPE) to children with disabilities in public schools. Under IDEA, private school students have some limited rights, but under a law in New York State which closely mirrors the IDEA, private school students have nearly identical rights as those given to public school students under the federal law. IDEA requires schools to find and evaluate students suspected of having disabilities, at no cost to parents, and to develop an Individualized Education Program (IEP) to meet the child's needs.
 

 

NYSHUMAN

RightsLaw

Our state Human Rights Law (HRL) prohibits discrimination or harassment in employment, public or private housing, education, access to credit, and places of public accommodation on the basis of many protected statuses, including sexual orientation, sex (includes gender identity and transgender status), disability (includes gender dysphoria).

When it comes to education, though, thanks to a 2012 decision by the NYS Court of Appeals (our highest court), the HRL only applies to private, non-profit, non-religious schools  -- only about 3% of the entire student population across New York!

This means that even with the passing of GENDA (the Gender Expression Non-Discrimination Act), the vast majority of our students in our state, who attend public schools, private religious schools, or private for-profit schools, are not protected under the HRL. This court decision is still good law, and it will take our state legislature passing a new law to fix the gap and make sure all students in our state are protected under the law!

 

dignityforall

studentsact

(dasa)

Enacted in 2010, DASA aims to provide New York State public elementary and secondary school students with safe and supportive environment free from discrimination, intimidation, taunting, harassment, cyberbullying and bullying on school property, a school bus, and/or at a school function, on the basis of actual or perceived race, national original, ethnicity, religion, mental or physical abilities, weight, sexual orientation, gender identity, and sex.

What DASA requires of schools:

  • Schools must have a DASA Coordinator

  • Schools must provide regular training and refreshers for faculty and staff, and annually remind students and parents about DASA

  • Schools must make DASA report forms available to fill out

  • Schools must investigate DASA reports it receives (even though you are not entitled to know results of investigation)

  • Schools must make annual report to the NYS Education Department (NYSED) of all DASA complaints received

There is no private right of action under DASA -- which means you cannot sue the school for violating DASA. However, you can and should file a DASA report for each and every single violation (e.g., when called a slur or epithet, when misgendered or dead-named, when denied access to appropriate restrooms or locker rooms, when denied access to school activities, functions, sports, or clubs, etc.). The school must investigate every single complaint it receives.

Retaliation is prohibited -- the school cannot retaliate against you or your family for filing DASA reports.

In 2015, NYSED published its own Guidance on how public schools should treat and accommodate trans and gender-nonconforming students. In February 2018, NYSED and the NYS Attorney General issued a joint statement reminding schools of their obligation to protect TGNC students.

Effective May 8, 2018, NYSED created a new regulation, approved by the Board of Regents in September 2018, that specifically outlines when DASA reports should be written regarding TGNC students, including:

  • Denial of access to school facilities including, but not limited to, restrooms, changing rooms, locker rooms, and/or field trips, based on a person's actual or perceived… sexual orientation, gender identity, gender expression, or sex
     

  • Application of a dress code, specific grooming or appearance standards that is based on a person's actual or perceived… sexual orientation, gender identity, gender expression, or sex
     

  • Use of name(s) and pronoun(s) or the pronunciation of name(s) that is based on a person's actual or perceived… sexual orientation, gender identity, gender expression, or sex
     

  • Any other form of harassment, bullying, and/or discrimination, based on a person’s actual or perceived… sexual orientation, gender identity, gender expression, or sex

 

Studentrights

byschooltype

What rights you have under state and federal law depend on what kind of school or educational program you attend, and whether that school or program receives federal funding. Here's the break-down:

  • Private, Religious, Non-Profit Schools

    • Maybe Title IX and 504 (but only if it receives qualifying federal financial assistance, and if no religious exemptions)
       

  • For-Profit Schools (specifically, higher education)

    • ADA, and possibly 504 if the student receives federal student loans