Title IX: an imperfect but vital tool to stop bullying of LGBT students.

• Author: Kimmel, Adele P.
• Position: A Conversation on Title IX

FEATURE CONTENTS INTRODUCTION I. OVERVIEW OF SEX DISCRIMINATION PROHIBITED BY TITLE IX II. GENDER STEREOTYPING AND ANTI-LGBT ANIMUS UNDER TITLE IX A. The Influence of Title VII B. Harassment of LGBT Students Based on Gender Stereotypes and Anti LGBT Animus 1. Civil Litigation 2. Federal Agency Action C. The Impact of Title IX on LGBT Students III. LIMITS ON TITLE IX'S EFFECTIVENESS AND NEEDED REFORMS A. Courts and OCR Should Interpret Title IX More Broadly 1. LGBT Bullying Involves Stereotypes Beyond Overt Masculinity or Femininity 2. LGBT Bullying Is Per Se Sex Discrimination B. Congress Should Amend Title IX or Pass New Legislation Prohibiting Discrimination Against LGBT Students C. School Policy and Training Reforms Are Needed CONCLUSION INTRODUCTION

When Seth Walsh "came out" as gay in sixth grade, his life changed dramatically. (1) His classmates became openly hostile and bullied him relentlessly. (2) They routinely called him derogatory names, such as "faggot," "pussy," "pansy," and "sissy," and sometimes told him to "burn in hell" or "kill himself." (3) The harassment escalated throughout middle school and eventually became physically and sexually violent. (4) Walsh's peers pushed him into lockers, obstructed his path as he tried to walk by, hit food out of his hands, and threw food, water bottles, pencils, and erasers at him. (5) They also grabbed Walsh "from behind while suggesting that he would be sexually gratified by the contact," (6) and one student "attempted to shove a pencil up the seat of [Walsh's] pants." (7) Some of the most hostile incidents occurred in the boys' locker room, where classmates pulled down his pants and a male peer threatened to rape him. (8) Walsh and his mother repeatedly reported the bullying to school officials, but to no avail. (9) Walsh's peers were permitted to bully him with impunity. Even some teachers joined in the disparagement. (10) Shortly after being "threatened, taunted, followed, and physically assaulted" at a local park by four students, Walsh committed suicide. (11) He was thirteen. (12)

Walsh's experience is all too common for students who identify as (or are perceived to be) lesbian, gay, bisexual, or transgender (LGBT). LGBT students are bullied at dramatically higher rates than other students. (13) They are twice as likely as non-LGBT students to be verbally harassed or physically assaulted at school. (14) A recent survey conducted by the Gay, Lesbian & Straight Education Network (GLSEN) found that "[s]chools nationwide are hostile environments for a distressing number of LGBT students, the overwhelming majority of whom routinely hear anti-LGBT language and experience victimization and discrimination at school." (15) Of the 7,898 LGBT students GLSEN surveyed about their experience in the past year of school, 74.1% were called names or threatened because of their sexual orientation and 55.2% because of their gender expression; 36.2% were pushed or shoved because of their sexual orientation and 22.7% because of their gender expression; and 16.5% were punched, kicked, or injured with a weapon because of their sexual orientation and 11.4% because of their gender expression. (16) Moreover, school staff did nothing in response to 61.6% of students who reported an incident. (17) As a result of routine bullying, many LGBT students miss school, get lower grades, and are less likely to pursue post-secondary education than their peers; they also suffer higher levels of depression and lower levels of self-esteem. (18)

In recent years, school bullying in general, and the targeting of LGBT students in particular, has garnered national attention. In 2011, the Obama Administration held the first White House Conference on Bullying Prevention, (19) following media reports on several LGBT students who committed suicide after being bullied at school. (20) The U.S. Department of Education's Office for Civil Rights (OCR) issued guidelines in 2010 clarifying schools' obligations to address bullying that violates any of the federal anti-discrimination statutes (21)--including "gender-based" harassment of LGBT students (22) that violates Title IX of the Education Amendments of 1972. (23) OCR has also investigated and reached resolution agreements with school districts that failed to respond appropriately to gender-based bullying of LGBT students. (24) These actions reflect cultural shifts in societal views of both school bullying and the LGBT community. (25) Bullying is now recognized as a serious problem that needs to be addressed, not a normal rite of passage to be endured. (26) And the LGBT community is receiving increasing public acceptance. (27)

These cultural shifts are also reflected in federal court decisions following the Supreme Court's ruling in Davis v. Monroe County Board of Education, which allowed damages actions under Title IX against school districts that respond inadequately to student-on-student sexual harassment. (28) Within the last two decades, many federal courts have permitted LGBT students to sue school districts for sex discrimination under Title IX for failing to protect them from gender-based bullying by other students. (29)

This Feature addresses the emerging importance of Title IX litigation and enforcement as a tool to stop peer-on-peer bullying of LGBT students in elementary and secondary (commonly referred to as "K-12") schools; it also explores Title IX's limitations in this area. Although Title IX jurisprudence post-Davis shows promise for LGBT students whose school districts fail to protect them from bullying, (30) action beyond the current scope of Title IX litigation and enforcement is needed to prevent and address the problem.

Part I provides a brief overview of the types of sex discrimination that Title IX prohibits and explains how the Supreme Court's decision in Davis opened the door to Title IX claims by LGBT students. Part II discusses the evolution of Title IX jurisprudence on the harassment of K-12 LGBT students. It first addresses how this evolution occurred, examining the influence of employment discrimination precedent under Title VII of the Civil Rights Act of 1964. (31) This Part also discusses key Title IX cases filed by LGBT or perceived-LGBT students and federal enforcement actions, showing the roles that gender stereotyping and anti-LGBT animus play in these cases. This Part concludes by explaining the important role that Title IX litigation and enforcement play in curbing the harassment of LGBT students.

Part III addresses the limits on Title IX's effectiveness and the reforms needed to stop the bullying of K-12 LGBT students. It argues that Title IX's effectiveness in providing LGBT students with equal access to educational opportunities is limited by two key deficiencies: (1) courts are interpreting the statute's prohibition against sex discrimination too narrowly, and (2) the statute does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. Specifically, this Part argues that courts should interpret Title IX to cover all harassment of LGBT students because this harassment is always based on gender stereotypes. In addition, harassment of students based on their sexual orientation or gender identity is per se sex discrimination. Furthermore, this Part makes the case that Congress should amend Title IX (or pass new, separate federal legislation) to prohibit discrimination in education based on sexual orientation and gender identity, in order to ensure that LGBT students have equal access to educational opportunities. Part III concludes by explaining why these legal reforms to Title IX are nevertheless insufficient. To effectively reduce victimization and improve the educational climate for K-12 LGBT students, schools should also implement anti-bullying policies and training and education programs that specifically address anti-LGBT bullying.

1. OVERVIEW OF SEX DISCRIMINATION PROHIBITED BY TITLE IX

   Title IX's prohibition against sex discrimination in education is broad. Under Title IX, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...," (32) Title IX covers a host of conduct that creates a hostile educational environment based on sex, including unequal admission, employment and athletic opportunities, sexual harassment, gender-based harassment, and sexual violence. (33) Congress passed Title IX in part to remedy gender stereotypes that were interfering with educational opportunities for girls and women. (34)

   More than two decades after Title IX's passage, the Supreme Court's decision in Davis paved the way for LGBT students to file Title IX lawsuits based on peer harassment. The plaintiff in Davis was a fifth-grade student in Georgia who filed a Title IX suit based on school officials' alleged failure to take action in response to complaints about a male classmate who was sexually harassing her. (35) The Court held that students subjected to peer sexual harassment may sue their school districts for damages when school officials "are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." (36)

   Although Davis involved male-on-female sexual harassment, the Court did not limit its holding to these circumstances. By defining actionable peer sexual harassment broadly, (37) Davis opened the door for LGBT students to file Title IX suits when schools fail to respond adequately to peer harassment based on gender stereotypes or perceived LGBT status. (38)

   LGBT students are frequently bullied for failing to conform to their peers' stereotypes about how boys and girls should look and act. (39)...