Duncan Issues Title IX Guidance for LGBT, Gender Identity Issues

June 19, 2011 CS Staff

WASHINGTON—U.S. Secretary of Education Arne Duncan sent a letter to schools and state departments of education on June 14 alerting them to their obligations under Title IX to protect LGBT students from sexual harassment and gender-based harassment resulting from sex stereotypes.

The letter claims that some Gay-straight alliances (GSAs) and similar student-initiated groups addressing LGBT issues have been unlawfully excluded from school grounds, prevented from forming, or denied access to school resources. These same barriers have sometimes been used to target religious and other student groups, leading Congress to pass the Equal Access Act.

Read the U.S. Department of Education’s guidance on this issue.

“In 1984, Congress passed and President Ronald Reagan signed into law the Equal Access Act, requiring public secondary schools to provide equal access for extracurricular clubs,” the letter states. “The Act requires public secondary schools to treat all student-initiated groups equally, regardless of the religious, political, philosophical, or other subject matters discussed at their meetings. Its protections apply to groups that address issues relating to LGBT students and matters involving sexual orientation and gender identity, just as they apply to religious and other student groups.

“The U.S. Department of Education’s General Counsel Charles P. Rose is issuing a set of legal guidelines affirming the principles that prevent unlawful discrimination against any student-initiated groups. We intend for these guidelines to provide schools with the information and resources they need to help ensure that all students, including LGBT and gender nonconforming students, have a safe place to learn, meet, share experiences, and discuss matters that are important to them.

“Although specific implementation of the Equal Access Act depends upon contextual circumstances, these guidelines reflect basic obligations imposed on public school officials by the act and the First Amendment to the U.S. Constitution. The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one non curricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other non curricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.”

“I encourage every school district to make sure that its administrators, faculty members, staff, students, and parents are familiar with these principles in order to protect the rights of all students – regardless of religion, political or philosophical views, sexual orientation, or gender identity. I also urge school districts to use the guidelines to develop or improve district policies. In doing so, school officials may find it helpful to explain to the school community that the Equal Access Act requires public schools to afford equal treatment to all noncurricular student organizations, including GSAs and other groups that focus on issues related to LGBT students, sexual orientation or gender identity. Officials need not endorse any particular student organization, but federal law requires that they afford all student groups the same opportunities to form, to convene on school grounds, and to have access to the same resources available to other student groups.

“The process of revising or developing an equal-access policy offers an opportunity for school officials to engage their community in an open dialogue on the equal treatment of all noncurricular student organizations. It is important to remember, therefore, that the Equal Access Act’s requirements are a bare legal minimum. I invite and encourage you to go beyond what the law requires in order to increase students’ sense of belonging in the school and to help students, teachers, and parents recognize the core values behind our principles of free speech. As noted in our October 2010 Dear Colleague Letter and December 2010 guidance regarding anti-bullying policies, I applaud such policies as positive steps toward ensuring equal access to education for all students.”

Read the U.S. Department of Education’s guidance on this issue.

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