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Beyond Sports and Sex Part 2: Title IX and Bullying/Harassment Based on Gender Stereotypes

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination.

To those people who have been following the social movement around campus sexual assault (and this blog), it may be clear by now that Title IX prohibits sexual harassment–that is, harassment that is sexual in nature. But Title IX also prohibits sex and gender-based harassment–that is harassment of someone because of their sex, whether or not the nature of the harassment is sexual. Courts have relied on case law developed under Title VII, which prohibits employment discrimination, to hold that Title IX prohibits harassment against students simply because of their sex. For example, the Eighth Circuit has held that Title IX prohibits harassment where “the underlying motivation for the harassment is hostility toward the person’s gender.”

A slightly more recent development in the law is increased recognition by federal courts and agencies that gender-based harassment extends beyond the circumstance where a student is harassed or excluded from educational opportunities because of his or her sex or gender to encompass situations where a student is harassed or bullied for the way he or she expresses his/her gender.  In recent years, courts have made clear that when a student is harassed for failing to conform to stereotypical gender roles, i.e. for failing to behave sufficiently “masculinely” or “femininely” in accordance with their gender, a school must address that harassment.

Indeed, the U.S. Department of Education’s 2001 guidance on Title IX (the last Title IX guidance to go through notice-and-comment rulemaking, and thus have the legal force of regulation) states “gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond.” Thus since 2001, it has been the position of the Education Department, the agency charged with interpreting Title IX, that this form of harassment is encompassed by Title IX’s prohibition on sex discrimination.

In 2010 I litigated an early case raising this theory. In that case, my client, a middle school boy, was mercilessly harassed by his fellow students because he engaged in behaviors that are not stereotypically “male”: he spoke in a high voice, dyed his hair bright colors, and wore makeup and nail polish to school. Students mocked his voice, told him to get a sex change operation, and using gendered slurs against him like “bitch” and “pussy.” The U.S. Department of Justice intervened in the case on behalf of my client, arguing that Title IX requires schools to address harassment based on gender stereotyping. Both before, and particularly since this case, courts have held that deliberate indifference to harassment based on sex-stereotypes violates Title IX. For example, three years ago a judge in the Fifth Circuit stated: The persuasive authority of which I am aware is uniform in suggesting that such harassment is indeed ‘bas[ed] on sex’ in the meaning of the statute.” The Eighth Circuit explained that discrimination “on the basis of sex” includes harassment “motivated by either [his] gender or failure to conform with gender stereotypes.” The Seventh Circuit agrees: “[T]he Seventh Circuit and other courts have recognized that discrimination based upon one’s failure to conform to stereotypical gender ideals may result in a finding of gender discrimination.” Numerous federal district courts have also reached the same conclusion across the country.

While these cases have been working their way through the legal system for over a decade, it is an issue that is now gaining more public attention. A recent New York Times article highlighted one family’s legal fight against their public school in Park Slope, Brooklyn, where the family says their “gender expansive” son, who identifies as male, was harassed and bullied for wearing clothes stereotypically associated with girls. In that case, the parents allege that the principal told them it would be easier if their son was transgender—highlighting the progress that has been made in understanding and accepting transgender students, but also the difficulty people have in understanding students who are cisgender but do not conform to sex stereotypes.

Title IX unequivocally prohibits discrimination or harassment that is based on a student’s failure to conform to gender stereotypes. A school that fails to address such harassment is liable under Title IX, and possibly similar state laws that address gender-based discrimination in education.

If you or your child is being discriminated against for failing to conform to gender stereotypes, call (617) 742-6020 to speak with one of Zalkind Duncan & Bernstein’s Title IX lawyers.

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