Federal policy improvements for trans people (day 5 of 5)

Day 5 of recent policy changes that improve the lives of trans and LGBQ individuals.

In July of 2013, the Department of Justice (DOJ) and Department of Education, Office for Civil Rights (OCR) officials noted in the resolution of a Title IX complaint that “[c]ourts rely on Title VII precedent to analyze discrimination ‘on the basis of sex’ under Title IX,” and found that “[a]ll students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX …”[xxx]  The Department of Education issued guidance to schools in 2010 clarifying that discrimination against transgender and gender nonconforming students may trigger federal Title IX protections.[xxxi] Similarly, the Department of Housing and Urban Development (HUD) issued guidance in 2010 clarifying that HUD would treat “gender identity discrimination most often faced by transgender persons as gender discrimination under the Fair Housing Act.”[xxxii]  As discussed above, the Department of Health and Human Services has also interpreted “sex” to include gender identity and sexual orientation.[xxxiii] Many other departments and agencies have recognized that gender identity discrimination is a form of sex discrimination by adding language this effect in their equal employment opportunity policies.[xxxiv]

In recent decisions, the EEOC’s Office of Federal Operations  has also held that Title VII reaches discrimination “motivated by the sexual stereotype that marrying a woman is an essential part of being a man,”[xxxv] and discrimination “motivated by the sexual stereotype that having relationships with men is an essential part of being a woman.”[xxxvi]  Some courts have held similarly under both Title VII [xxxvii] and Title IX. [xxxviii]

DOJ and OCR have similarly found that harassment based on sex stereotypes concerning appropriate romantic relationships or attractions for boys or girls is covered by Title IX. For example, in a 2011 letter of findings to the Tehachapi Unified School District, OCR and DOJ found that “comments and questions to the Student suggesting that he was engaging in sex and disparaging the manner in which he was presumed to do so; insinuations that the Student was a sexual threat to other students in the locker room; mocking invitations to the Student to engage in sexual acts or go out on dates; suggestions that the Student would be sexually gratified by accompanying physical sexual harassment that was occurring” – all focused on the student’s perceived romantic interest in and behavior with other boys – constitutes harassment on the basis of the student’s sex.[xxxix]
[xxx] Letter from Anurima Bhargava, Chief of Educational Opportunities Section of Civil Rights Division of U.S. Department of Justice, & Arthur Zeidman, Director of San Francisco Regional Office of Office for Civil Rights of U.S. Department of Education, to Asaf Orr, Esq., National Center for Lesbian Rights (July 24, 2013), http://www.nclrights.org/site/DocServer/Arcadia_Notification_Letter_07.24.2013.pdf. See also Doe v. Anoka-Hennepin School District No. 11 and United States v. Anoka-Hennepin School District No. 11, Nos. 11-cv-01999 and 11-cv-02282, United States Complaint-in-Intervention,  1 (D. Minn. Mar. 5, 2012) (defining “gender-based” harassment as “non-sexual harassment of a person because of the person’s sex, including harassment based upon gender identity and expression”); Consent Decree, 2B (D. Minn. Mar. 6, 2012) (same).

[xxxi] Office of Civil Rights “Dear Colleague” Letter to School Administrators, United States Department of Education (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.

[xxxii] Memorandum from John Trasviña to FHEO Regional Directors, Assessing Complaints that Involve Sexual Orientation, Gender Identity, and Gender Expression (June 2010).

[xxxiii] Letter from Leon Rodriguez, supra note 9.

[xxxiv] See, e.g., United States Department of Health and Human Services, EEO Policy Statement, available at, http://www.hhs.gov/asa/eeo/policy/; United States Department of State, EEO Policy, available at, http://careers.state.gov/learn/who-we-are/diversity-inclusion/eeo-policy; United States Department of Veteran Affairs, VA EEO Policy, available at, http://www.diversity.va.gov/policy/statement.aspx.

[xxxv] Veretto v. Donohoe, a United States Postal Service, 2011 WL 2663401 (July 1, 2011). 

[xxxvi] Castello v. Donohoe, 2011 WL 6960810 (Dec. 20, 2011). 

[xxxvii] Koren v. Ohio Bell Telephone Co., 894 F.Supp.2d 1032 (N.D. Ohio 2012); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002).

[xxxviii] Estate of Brown v. Ogletree, 2012 WL 591190 at *16-17 (S.D. Tex. Feb. 21, 2012) modified on other grounds by Estate of Brown v. Cypress Fairbanks Indep. Sch. Dist., 2012 WL 1900929 (S.D. Tex. May 23, 2012); Schroeder v. Maumee Board of Education, 296 F. Supp. 2d 869, 871 (N.D. Ohio 2003).

[xxxix] Letter of Findings, OCR Case No. 09-11-1031, DOJ Case No. DJ 169-11E-38, at 14. (June 30, 2011).