More and more LGBTQ+ teens say they are being harassed at school—in elementary grades, middle school, high school, and college—and that could have dire consequences for educators and institutions falling for common Title IX compliance and Clery Act violations.
Failing to comply with federal anti-discrimination and campus safety laws can land you and your institution in court and cost you federal funding and fines, note education consultants Jennifer L. Martin, Susan Strauss, and Susan Fineran. These three experts outline the reality of LGBTQ+ harassment in schools today—as well as other potential Title IX and Clery Act violations in their Eli Education virtual boot camp, “The Changing Shape of Title IX Compliance: 5 Essentials for Your Institution & What They Mean for You.” They say that better understanding your most vulnerable populations can help you support and protect them—even where the law falls short of doing so.
Weak Protections for Harassment Based on Sexual Orientation, Gender Identity
Today there are an estimated 3.2 million American youth who are LGBTQ+, according to an estimate from the University of California at Los Angeles’ Williams Institute. Nearly one-in-10 high schoolers identify as lesbian, gay, or bisexual; and almost 1 percent identify as transgender.
A range of federal laws prohibit discrimination on the basis of sex, national origin, and religion. For instance, Title IX prohibits sex discrimination in any education program or activity that receives federal funding; discrimination can include harassment and assault, notes the American Civil Liberties Union.
But: There are no laws that explicitly protect students from discrimination on the basis of sexual orientation or gender identity.
And while there exist relevant state anti-discrimination and anti-bullying laws, notes UCLA—just 20 states have them and they cover only about half of all U.S. students who identify as LGBTQ+.
Better anti-harassment strategies are clearly needed. Nearly all LGBTQ+ reported experience with verbal harassment, and more than one-quarter have been physically harassed, found a 2015 report by GLSEN. For students who identify as transgender, nearly one-in-five experienced mistreatment so profound they left school, according to the 2015 U.S. Transgender Survey.
“Results indicated that the majority of those who were out or perceived as transgender in K-12 had one or more negative experiences, and that such experiences were correlated with a variety of poor outcomes, such as higher rates of attempted suicide, homelessness, and serious psychological distress,” the Transgender Survey report noted.
Schools Free to Make Their Own Transgender Policies—But Beware
Now, members of the Trump Administration have moved to loosen federal protections for transgender students.
Education Secretary Betsy DeVos earlier this year directed the Education Department to stop investigating civil rights complaints from transgender students, the Washington Post noted. Instead, DeVos said, individual school districts should determine how to accommodate transgender students.
Some courts, however, have maintained protections and admonished schools that don’t promote safe educational environments for LGBTQ+ students. In July, a federal court in Florida ruled that one school district’s policy of excluding transgender students from restrooms that match their gender was unconstitutional.
Higher Ed: The Costs of Compromised Student Safety
Higher education institutions have another federal law to contend with in their battle to keep LGBTQ+ and other students safe. The Jeanne Cleary Disclosure of Campus Security Policy and Campus Crime Statistics Act requires colleges receiving federal financial aid to keep and disclose campus crime statistics and security information.
Take note: The Department of Education updated its guidance on the Clery Act in 2016, and increased fines for violations in 2017. The fine per Clery Act violation actually doubled to $54,789, Campus Safety Magazine noted. That money can add up—just ask Penn State University, which was fined $2.4 million in the wake of the Jerry Sandusky scandal.
With lots in flux at the federal level, Strauss, Martin, and Fineran note that it’s up to education officials—from administrators and deans to faculty and staff—to advocate for LGBTQ+ students and other vulnerable populations and work to create more equitable policies within their school communities.