This guide was written by Abby Shuler and Craig White of the Campaign for Southern Equality. Abby Shuler is the Research Associate for the Supportive Schools Program, and Craig White is the Supportive Schools Director.
2021 was marked by a wave of legislation targeting transgender students in state legislatures across the country – and now, as 2022 kicks off, we’re also seeing attacks at the local level: campaigns to ban books with LGBTQ+ topics and characters, protests at school board meetings about LGBTQ+ content in the curriculum, increased harassment of LGBTQ+ students, staff and faculty, and teachers being pressured to take down pride flags and remove affirming messages from their classrooms.
Schools should be safe places where every student is treated with respect and receives a quality education. We find it deplorable that schools are once again being dragged into the culture wars, especially at a time when they are facing real challenges related to being under-resourced, under-staffed, and dealing with a pandemic. However, that’s where we are right now–and against that backdrop, it is critical that LGBTQ+ students, staff and faculty know your rights under the law and how to stand up for them.
What is harassment?
Harassment on the basis of sexual orientation or gender identity is legally considered sexual harassment. Sexual harassment is a form of sex discrimination and is illegal. Harassment and/or discrimination may take the form of one severe interaction, or a series of interactions and situations that create a ‘hostile learning environment.’ A school may be liable for active acts of bias, harassment or discrimination, or passive inaction in allowing bullying, bias or harassment to persist.
Regardless of your sexual orientation, gender identity, or gender expression, legal protection from discrimination is your civil right. Unfortunately, the current political climate in the South makes LGBTQ+ students and educators particularly vulnerable to discrimination. Fortunately, you have the power to stop it. Here are the federal laws that are designed to protect you, followed by what you can do if your school is breaking them.
I am a student. What are my rights?
You are protected by Title IX from discrimination at school based on your gender, gender identity, gender expression, or sexual orientation. Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in any education program that recieves federal funding. This includes all public schools and charter schools, and many private schools as well. The Department of Education recently clarified that Title IX includes protections for students of all sexual orientations and gender identities, after a landmark Supreme Court case called Bostock vs. Clayton County found discrimination based on “sex” to also include sexual orientation and gender identity. You are protected from discrimination whether it is your actual gender identity or sexual orientation, or what someone perceives or assumes your gender identity or sexual orientation to be. There are also other civil rights laws that protect you from harassment and discrimination at school based on other identities like your race, ethnicity, age, religion, disabilities, etc.
Your privacy is also protected under a law called the Federal Educational Rights and Privacy Act (FERPA). You can share information about your gender identity and sexual orientation however you choose, but the school is not free to share that information, any more than they could hand out your medical information or your home address. More information on your privacy rights can be found here.
Students: If you are being discriminated against at school, you have the power to stop it. Click here to learn more.
I am a faculty and/or staff member. What are my rights?
School district employees have the same Title IX protections as students, and are also protected by Title VII from employment discrimination based on your actual or perceived gender, gender identity, gender expression, or sexual orientation.
Title VII is a federal civil rights law that prohibits employment discrimination on the basis of sex. The law applies to private-sector employers with 15 or more employees, state/local government employers with 15 or more employees, and to any federal government employer. This includes all public schools and most private schools. Similarly to Title IX, Title VII was recently clarified to include protection from discrimination on basis of sexual orientation and gender identity as a result of the Bostock case.
Your privacy is also protected under a law called the Federal Educational Rights and Privacy Act (FERPA). You can share information about your gender identity and sexual orientation however you choose, but the school is not free to share that information, any more than they could hand out your medical information or your home address. More information on your privacy rights can be found here.
School faculty and staff: If you are being discriminated against at your school, you have the power to stop it. Click here to learn more.
I am a school administrator or a school board member. What are my rights and responsibilities?
You also have legal protection from discrimination and harassment. Administrators who are employed by the school district have all the rights and protections described in the faculty section, above. For school board members, who may be elected or appointed officials, the situation is more complex; you may wish to speak with the school district’s attorney. Also, keep in mind that any situation in which a school board member is experiencing harassment is likely also affecting students and employees, and action may be taken on their account as well.
Administrators, school board members and other policy makers also have a critical role to play in preventing and addressing discrimination and harassment. The most important steps are to proactively and assertively cultivate a school culture that welcomes and supports all members of the school community, and offers no tolerance for any form of harassment and discrimination. Because of your leadership role, you may also find yourself as the first line of defense for protecting students and faculty who are being harassed.
Administrators, school board members, and other policy makers: If you are concerned about harassment and discrimination in your school or district, please click here for more information.
Sources and Resources
Overall Resources:
- Lambda Legal’s Know Your Rights guidance – Lambda Legal is a national organization dedicated to upholding the civil rights of the LGBTQ+ community. This page outlines the rights of LGBTQ+ individuals in the workplace, at school, in court, as well as the rights of those living with HIV.
- Know Your IX: Guidance on taking legal action under Title IX – This is another great resource on how students and school staff can file a Title IX complaint. It includes in depth information about filing an OCR complaint and/or a Title IX lawsuit.
- Resources for LGBTQI Students from the Department of Education – These fact sheets, videos, guidance letters and other resources can be a powerful tool in making your case with teachers and administrators.
- Types of Educational Opportunities Discrimination Protection – Here is a complete list of civil rights protections for individuals in educational agencies from the Department of Justice.
- Supreme Court’s response to Bostock vs. Clayton County – This landmark case ruled that sexual orientation, gender identity, and gender expression are included in all civil rights protections on the basis of sex.
For Students:
- Department of Education Office of Civil Rights: Protecting Students Overview – This is an overview of the civil rights protections for students, organized by social identity (ie. race, sex, disability, age). For each identity, it includes policy guidance on the laws themselves, frequently asked questions, and a link to file a discrimination complaint.
For School Staff & Faculty:
- GLSEN’s LGBTQ+ Educator Rights – Here is an excellent list of your rights as a LGBTQ+ educator, as well as a short overview of filing an EEOC complaint. It also includes contact information for advocacy organizations that can help you.
- Fair Employment Practices Agencies – This is a simple fact sheet from the US Equal Employment Opportunity Commission about FEPAs, how to file a discrimination charge against your workplace, and what dual-filing is.
- FEPA and EEOC Dual Filing FAQs – Here is a bit more information on dual filing between FEPA and EEOC complaints, as well as how the two agencies will share your data.
- Filing a Charge of Discrimination with the EEOC – More guidance on filing discriminiation charges with your local FEPA and the EEOC, as well as a link to the EEOC Public Portal to get started with the charge.
Disclaimer: This document includes resources and information and it is not legal advice. Moreover, due to the rapidly changing nature of the law and our reliance on information provided by outside sources, we make no warranty or guarantee. For legal advice, it is advised to consult an attorney.
