On June 22, 2021, the United States Department of Education, Office of Civil Rights (“OCR”) and the U.S. Department of Justice, Civil Rights Division (“DOJ) issued a joint Fact Sheet addressed to elementary and secondary schools and well as public and private colleges and universities and their students giving explicit examples of the kinds of incidents involving LGBTQI+ students that both agencies will begin investigating immediately. While prior statements from OCR did not explicitly address bathrooms, locker rooms and sports teams, this Fact Sheet is clear and unambiguous in setting out the United States’ stance on these issues.
One of many of the examples of discriminatory incidents that OCR and the DOJ identified as those they will investigate is:
On her way to the girls’ restroom, a transgender high school girl is stopped by the principal who bars her entry. The principal tells the student to use the boys’ restroom or nurse’s office because her school records identify her as being “male.” Later, the student joins her friends to try out for the girls’ cheerleading team and the coach turns her away from tryouts because she is transgender. When the student complains, the principal tells her “those are the district’s policies.”
This is the clearest, most unambiguous statement that OCR has made that moving forward they will find that it is discrimination under Title IX to prohibit a student to use the bathroom and/or participate on a sports team that corresponds with the student’s identified gender.
The Fact Sheet gives several other examples of incidents that would be considered harassment under Title IX and makes clear that OCR and the DOJ expect that school districts will follow Title IX’s requirement to intervene and provide supportive measures if the district has knowledge of the harassment. As a reminder having knowledge of the harassment at the K-12 level means that any employee has knowledge.
On the flip side, it also means that if a formal Title IX complaint is filed alleging harassment due to sexual orientation and/or gender identity or expression, the alleged harasser must receive all the due process rights set forth in the Title IX regulations (for more on these rights, you can see my prior blog on the formal complaint process in the Title IX regulations). Thus, it is more important than ever to ensure that your Title IX policies are up to date and your staff is properly trained to spot, report and address incidents of sexual harassment including harassment because of identifying as LGBTQI+.
On Monday, June 28, 2021, the U.S. Supreme Court denied certiorari in Grimm v. Gloucester County School Board, closing the final chapter on the case addressing a school district policy prohibiting transgender students from using the restroom that corresponds to their identified gender. This effectively leaves in place the lower court’s ruling that the board illegally discriminated against Grimm, who is transgender, when it denied him the right to use the boy’s bathroom and instead required him to use separate facilities. This provides yet further support to OCR’s revised stance on transgender students’ right to use the facilities corresponding to their identified gender, which mirror’s Connecticut’s own statutes and guidance.