By Kerry Eleveld
Originally published on Advocate.com October 26 2010 7:26 AM ET
The U.S. Department of Education launched an effort Tuesday to outline educators’ responsibilities in combating bullying and specifically informing them that, in many cases, Title IX applies to and prohibits the harassment of LGBT kids if it is sexual in nature or based on gender nonconformity.
“A lot of bullying experienced by LGBT kids is accompanied by or in the form of sexual harassment or gender-based harassment because students are perceived as not conforming to traditional gender roles,” explained the department’s assistant secretary for Civil Rights, Russlynn Ali. “We want to be sure that recipients understand that that kind of discrimination and harassment can very much be a violation of Title IX in federal civil rights laws.”
In a letter distributed to about 15,000 school districts across the country plus colleges and universities that receive federal funding, Ali wrote, “Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination … The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment.”
The “dear colleague” letter included a hand full of hypothetical harassment scenarios that would violate federal statutes. In an example termed “Gender-Based Harassment,” the letter laid out a situation in which a gay student suffers anti-gay and sexual slurs and is physically assaulted because “he did not conform to stereotypical notions of how teenage boys are expected to act and appear.”
The letter went on to explain that “the school failed to recognize the pattern of misconduct as a form of sex discrimination under Title IX.”
The new guidance also clarified that while current laws don’t prohibit religious-based harassment, they do include protections against harassment of members of religious groups based on shared ethnic characteristics.
Institutions that receive complaints but fail to take action to protect students who are being unlawfully bullied or harassed could face legal action or financial penalties. Ali said those cases could be referred to the Department of Justice for litigation or they could result “in the withdrawal or termination or conditioning of all federal funds received from the Department of Education.”
Administration officials said the effort was a response to a rash of recent bullying episodes resulting in a series of suicides that have grabbed front-page headlines. Although DOE officials said 44 states have enacted basic anti-bullying laws, only 14 have laws protecting students on the basis of either their sexual orientation or gender identity, with another three protecting sexual orientation only according to the Human Rights Campaign.
Kevin Jennings, the department’s assistant deputy secretary for Safe and Drug-Free Schools and the founder of the Gay, Lesbian and Straight Education Network (GLSEN), said the administration was making a “proactive” attempt to educate people about the protections that do exist for queer youth.
“In this administration, we plan to apply the letter of the law to fullest extent of the law in order to extend the greatest level of protections humanly possible to LGBT students,” Jennings said.