Transgender Student Rights: The Basics
Many students face harassment and discrimination at school and other learning environments. Transgender and gender non-conforming students are particularly vulnerable to mistreatment from fellow students, school staff, and school administrators in school districts. The rights of transgender students aren't always respected.
The following is an overview of some of the laws and regulations that have been used to protect LGBTQ+ students facing harassment or discrimination on account of the student's gender identity or transgender status.
Common Forms of Gender Discrimination
Discrimination against transgender students may include being expelled from school, kicked out of class, held after school, or otherwise treated differently as a result of their gender identity or expression on the gender spectrum.
Other areas that impact the human rights of transgender children in schools specifically include the use of chosen names and pronouns with the intent to harass or mock, restrictions or confrontations regarding restroom use, discrimination in the administration of gender-segregated classes (such as physical education) and extracurricular activities (such as high school athletics), and discrimination in the application of dress codes.
Family Educational Rights and Privacy Act (FERPA)
The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student records. FERPA gives parents certain rights relating to their children's records. These rights transfer to transgender people when they turn 18.
Under FERPA, student records can be changed if they are inaccurate or misleading. LGBTQ+ people can have their names and gender markers changed under this law.
The Patsy Mink Equal Opportunity in Education Act, previously known as Title IX of the United States Education Amendments of 1972, states that no person in the United States shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the basis of sex under any education program or activity receiving federal financial assistance. The federal government expressly prohibits sex discrimination.
Does Title IX Protect Transgender Students?
Although Title IX protects against gender discrimination it is not necessarily interpreted as providing protection to transgender students. However, this is still an unsettled debate:
- In 2014, the U.S. Department of Education issued a set of guidelines stating that Title IX does indeed protect against the discrimination of transgender youth in a school environment. The memo instructed public schools to treat transgender students consistent with their gender identity in all aspects of planning, and implementation, as well as in the operation and evaluation of single-sex classes.
- In 2017, the Trump administration, through the Department of Education, issued a new set of guidelines rescinding the Obama-era protections under federal law. The new guidelines effectively directed students covered by Title IX to use the restroom or locker room that corresponds with their birth-assigned gender, while ensuring continued protection against discrimination and harassment.
- In the following years, California and some other states passed laws that effectively maintain the nondiscrimination protections of transgender students initiated by the 2014 guidelines. But uncertainty remains both among the states and in the trajectory of federal policy (and judicial interpretations of "gender discrimination") going forward.
- In June 2020, the Supreme Court of the United States in Bostock v. Clayton County concluded that discrimination on the basis of sex encompasses both discrimination based on sexual orientation and discrimination based on gender identity. This federal court ruling was made in the context of Title VII of the Civil Rights Act of 1964, the interpretation of which is frequently relied on when interpreting Title IX.
- In January 2021, the Biden administration directed all federal agencies to review laws — including Title IX — that prohibit discrimination on the basis of sex to determine whether they also prohibit discrimination on the basis of gender identity and sexual orientation. Both the U.S. Department of Education and the U.S. Department of Justice affirmed that Title IX prohibits discrimination based on gender identity, gender expression, and sexual orientation.
The Biden administration has explicitly stated that Title IX protections extend to transgender students and that it will investigate complaints involving transgender students. Although these directives do not have the force of law, the Biden administration intends to significantly rewrite Trump-era Title IX regulations to include new protections for transgender students in 2022.
Does Title IX Prohibit Discrimination Among Students?
Another point of uncertainty has been the extent to which Title IX protections extend to interactions between students, as opposed to interactions involving schools and their officers and administrators.
- The "Dear Colleague Letter" issued by the U.S. Department of Education's Office for Civil Rights in 2011 stated that sexual harassment and sexual violence interfere with a student's right to receive an education free of discrimination. Since that time, victims of sexual harassment have filed actions against schools under Title IX for the schools' failure to address sexual harassment and violence among their students.
- Executive Order 14021, signed by President Biden on March 8, 2021, directed the U.S. Department of Education to conduct a review of all regulations, including Trump-era Title IX regulations, with the purpose of guaranteeing that all students have "an educational environment free from discrimination on the basis of sex," including discrimination in the form of sexual harassment, sexual violence, sexual orientation, or gender identity.
- Additionally, in its expected rewrite of Trump-era Title IX regulations, the Biden administration has announced its plans to make major amendments to Title IX's rules on sexual misconduct that govern how educational institutions address sexual assault and harassment.
Title IX protection only extends to schools that receive federal funds, so private institutions may not be subject to Title IX.
Although Title IX covers nearly all public schools and many private schools, there are still some private institutions that don't receive federal funding that the law cannot reach. Most of these institutions are, however, subject to regulation by state and local authorities.
California's Student Safety and Violence Protection Act of 2000 is an example of a state law designed to protect students not covered by Title IX protections. Prior to the enactment of this law, the California Education Code specifically prohibited discrimination and harassment on the basis of sex, ethnicity, race, national origin, religion, color, or disability. The new law extended protection to cover sexual orientation and gender identity.
Nineteen states (California, Colorado, Connecticut, Hawai'i, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oregon, Vermont, Virginia, and Washington), as well as the District of Columbia, have laws or interpretations that specifically prohibit gender identity-based discrimination in public schools and, in some cases, private schools that receive state funding.
Note: Discrimination against transgender and gender non-conforming individuals is a developing area of law. State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
School District Policy
To preserve the well-being of their transgender students, many school districts have policies allowing LGBTQ+ students to go by their chosen name and pronouns and use restrooms appropriate to their gender identity. School staff and administrators who refuse to abide by such policies may be subject to discipline.
Fighting Discrimination and Harassment
If you are the victim of discrimination or harassment, filing a written complaint that includes details about the incident, participants, and witnesses is generally the starting point.
A complaint should be filed with the school and a record of statements or actions taken in response should be kept. Depending on whether your school is subject to federal or state anti-discrimination laws, you may also file a complaint with the U.S. Department of Education's Office for Civil Rights or your state's Department of Education. Complaints need to be filed in a timely fashion. GLSEN provides additional resources on its website.
In some cases, hiring an attorney to assist in pursuing your complaint can be helpful. The laws relating to discrimination against transgender students vary greatly as this is a developing area of law. An attorney familiar with civil rights claims in your jurisdiction can assist you by ensuring relevant deadlines are met, presenting evidence effectively, calling attention to relevant laws, and ensuring that authorities understand the gravity of your complaints.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.