North Carolina’s new law, SB49, is deliberately complicated and confusing. One important thing to know is that, in most of its elements, it does not target LGBTQ+ students directly; instead, it directs school districts to pass their own policies (check out this FAQ:North Carolina’s Don’t Say Gay or Trans Law to learn more about SB49). The confusing nature of the bill serves two purposes: One, many districts are likely to over-comply with what the law actually requires; and two, the complicated nature of the law gives a ‘permission to discriminate’ to an actively anti-LGTBQ+ school board or administration.
Here’s another important thing to know: Federal law takes precedence over state law and school board policies. A federal law called Title IX prohibits discrimination on the basis of sex, including sexual orientation, gender identity, and gender expression in any school that receives federal funds.
It’s a conflict between discriminatory state laws and school board policies vs. federal civil rights protections.
But we don’t actually have civil rights until we step up and use them. If you’re concerned that your school board may pass discriminatory policies as a result of SB49, here’s something you can do.
Every school or district that falls under Title IX is required to have a Title IX Coordinator, a full- or part-time staff person who receives and investigates complaints. That person’s responsibilities also include being the Title IX Compliance Officer: reviewing every policy and practice in the school or district to ensure it does not violate Title IX.
In 1972, when Title IX was originally passed, this was the most important part of the role. The Title IX Coordinators at that time were given a full year to review every policy in the school district, notify the administration and the governing body about which were out of Title IX compliance, and recommend changes, revisions, or just dropping the policy.
Fifty years later, many Title IX Coordinators are not well trained on this aspect of their role, nor do their districts have clear policies and guidelines for how the Coordinator can hold their own administration and school board accountable. Still, it’s the law.
So if you are concerned about policies your school board may pass or has passed as a result of SB49, you can file a ‘request for a Title IX determination’ with your Title IX Coordinator. In a nutshell, it says, “SB49 calls for discrimination against LGBTQ+ students. Therefore, it seems likely that new or revised school board policies will too. In your role as the Title IX Compliance Officer, we require that you investigate and publicly share your findings about whether these policies violate, or comply with, all the provisions of Title IX. Also, since federal law carries more weight than state law or school board policies, those policies should not be implemented until your determination is complete.”
You may want to meet with your Title IX Coordinator first. So far, districts with supportive policies for LGBTQ+ students are finding that SB49 requires few changes and leaves support for those students intact. These districts are also more likely to be fulfilling their compliance requirements already. In these situations, it may be best to let good administrators do their job.
If you are concerned about overcompliance by your school district, or if your district has a track record of failing to support LGBTQ+ students, then requesting a determination of Title IX compliance may be something to consider.
If you do not agree with the determination that the Title IX Coordinator provides, you can appeal their decision to the Office of Civil Rights at the US Department of Education. The OCR is deeply backlogged and will take some time to investigate, but this can work in your favor if the discriminatory policies are placed on hold while the investigation is pending.
A sample letter is below, that you can revise and send to your Title IX Coordinator.
Model Letter to Title IX Coordinator requesting determination of Title IX compliance
To: ______________, Title IX Coordinator, ____________________ Schools
RE: Request for determination of Title IX compliance
One of your duties as the Title IX Coordinator for _______ Schools is to serve as the Title IX Compliance Officer, carrying the responsibility and authority to proactively ensure that all the policies and practices of ________ Schools remain in compliance with Title IX of the Education Amendments of 1972.
We, the undersigned, allege that many elements of the recently passed state law SB49 are in violation of Title IX, because they discriminate against students, staff and faculty on the basis of sexual orientation and gender identity. We allege that elements in the bill are discriminatory:
- In intent, as the public comments of the legislators who proposed and supported this legislation make it clear that the purpose of the bill is to single out LGBTQ+ students, staff, and faculty in general, and transgender and non-binary students in particular;
- In application, as any attempt to enforce certain of its provisions will inevitably be focused on LGBTQ+ students, and transgender and non-binary students in particular;
- In impact, as the negative outcomes of the bill will be concentrated on LGBTQ+ students, staff, and faculty in general, and transgender and non-binary students in particular; as well as those staff and faculty who are perceived as being supportive of LGBTQ+ students;
- And in creating a hostile educational environment for LGBTQ+ students and a hostile work environment for LGBTQ+ staff and faculty, and again, for transgender and non-binary students, staff, and faculty in particular.
We request and require you, in keeping with your role as Title IX Compliance Officer, to undertake a Title IX compliance review of any district policy that may be passed or amended as a result of SB49, and to issue a detailed, written determination of whether that policy is in violation or compliance with the provisions of Title IX, with explanations as required by law.
In keeping with the district’s obligation to follow federal law, we expect that no such policies will be applied or implemented until such a determination has been completed and made public.
If you and the attorneys of the school district feel unable to make such determinations, we would be pleased to submit this allegation to the US Department of Education, Office of Civil Rights.