By Katherine Greenier, Director, Patricia M. Arnold Women’s Rights Project, ACLU of Virginia
Title IX, a groundbreaking statute intended to end sex discrimination in education, became law on June 23, 1972. While most famous for its requirement that schools provide girls with equal athletic opportunities, Title IX is not just about sports. The law applies to all educational programs that receive federal funding, and to all aspects of a school's educational system. Title IX benefits both boys and girls and is the lynchpin of decades of efforts to promote and establish gender equity in schools.
For 40 years, Title IX has mandated gender equality in education and has made a huge difference in young people’s lives. By ensuring that public and private schools, universities and education programs that receive federal funding do not discriminate on the basis of sex, it has not only changed the face of education, it has dramatically increased the ability of girls to fully participate in educational programs and opened doors for all young people to pursue their goals.
Although most people know that Title IX requires schools to provide girls and boys with equal athletic opportunities, it goes much further and helps to ensure that our schools are free of gender-based discrimination and harassment across all educational and extra-curricular programs. Gender-based harassment means harassment or bullying because a student does not conform to gender stereotypes – for example, a female student is derided by her peers because she does not act the way they think girls should act. Similarly, Title IX protects transgender and gender-nonconforming students who are sexually harassed or discriminated against based on their gender identity or expression.
For example, in Virginia, we were recently able to prevent the Suffolk County School Board from adopting a dress code policy that, as proposed, prohibited “[a]ny clothing worn by a student that is not in keeping with a student’s gender and causes a disruption and/or distracts others from the educational process or poses a health or safety concern.” We sent a letter to the school board arguing that the policy was unconstitutionally vague and reminded board members that the policy was also in violation of Title IX because it discriminated against students based on gender stereotypes. The Board was wise to drop the discriminatory language.
Also, consider this hypothetical scenario: Over the course of a school year, a gay high school student was called names (including anti‐gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear. As a result, the student dropped out of the drama club to avoid further persecution. Based on the student’s self‐identification as gay and the homophobic nature of some of the attacks, the school did not recognize that the misconduct included discrimination covered by Title IX. The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti‐bullying policy. The reprimands of the identified perpetrators stopped the abuse by those individuals. It did not, however, stop others from undertaking similar harassment of the student.
This hypothetical scenario comes from the U.S. Department of Education's Office for Civil Rights (OCR) comprehensive guidance laying out schools' responsibilities for responding to known acts of bullying. OCR’s guidance, released in October 2010, provided this scenario as an example of the type of gender-based harassment schools have an obligation to protect students from. While Title IX does not cover discrimination on the basis of sexual orientation, that does not absolve school districts from their obligation to address sexual orientation-based attacks that "overlap" with sex-based harassment – harassment that targets a student for failing to conform to sex stereotypes.
We all know such a hypothetical scenario is not abstract. Every day, students in our schools are subjected to bullying. We all want our schools to be safe and no student should fear being bullied or assaulted because of their gender. OCR's guidance letter does not tell school officials anything they should not already know. A school’s responsibilities to protect students from gender-based harassment come from interpretations of Title IX that existed before the release of OCR’s guidance. Still, given the number of tragic bullying incidents profiled in the media and the suicide rates amongst LGBTQ youth, not to mention the stories that don’t make it to the news, it seems schools have not received the message. On this 40th anniversary of Title IX, now is the time for school officials to take the law and harassment seriously.
For more information about your rights and your school’s obligation under Title IX, see the ACLU’s fact sheet.