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Transgender Advocates Renew Push for Title IX Guidance After College Waivers

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The U.S. Department of Education recently granted religious exemptions from Title IX's protections for transgender students to three private colleges. LGBT advocacy groups have used the attention given to those exemptions to renew calls for further guidance about the rights of transgender students in both K-12 and higher education. Here's how the two issues are related and how they are distinct.

Inside Higher Ed and The New York Times reported last week that three colleges received the Title IX exemptions: Spring Arbor University, in Michigan; Simpson University, in California; and George Fox University, in Oregon. The exemption to George Fox University arose from a dispute over whether it was obligated to let a transgender student live in men's dorms, even though a court has legally changed the student's sex to male. Spring Arbor sought the exemption so it can make decisions about transgender students with regard to admissions, behavioral rules, housing, access to restrooms, athletic participation, and other issues, according to Inside Higher Ed. Simpson University sought the exemption for similar reasons, Inside Higher Ed reported.

But those issues all affected private higher education institutions, which all received waivers from portions of the civil rights law because its application "would not be consistent with the religious tenets of such organization." In a statement last week, the Gay, Lesbian and Straight Network (GLSN)  said it "strongly urges Congress to narrow the broad exemption found within Title IX."

How does this relate to K-12 education?

Title IX applies to schools that receive federal funds. Title IX applies to private, higher education institutions because their students take federal aid, like Pell grants. On the K-12 level, private schools don't take federal funding, so Title IX doesn't apply to them.

Public K-12 schools—where much discussion of transgender student rights has played out—can't claim the same exemptions recently granted to private, religiously affiliated universities. But student advocacy groups have long said all schools need further guidance about how Title IX applies to transgender students so that they can meet all of their obligations.

On April 29, the department clarified that Title IX protects all students, regardless of sexual orientation or gender identity. But advocacy groups wanted more detailed guidance. In May, GLSN and more than 40 other organizations wrote to the department asking for further clarification that Title IX protections include requiring that schools allow transgender students to participate in all programs and sports activities, "respect students' gender identity for all purposes," and enforce dress codes based on a student's stated gender identity and expression.

Despite a lack of extensive guidance related to this issue, it's worth noting that the U.S. Department of Education has responded to complaints related to public schools and gender identity. In July 2013, for example, the Arcadia Unified School District in California agreed to a settlement with the agency's civil rights division following a complaint by a then-rising 9th grader who was born female but now identifies as a boy. The school had refused to let the student use the boys' restroom, among other things, according to a School Law blog post.

But advocates say additional guidance would make sure schools are all on the same page and clear on their obligations under the law, as I wrote in this January story about a new California law designed to protect transgender students.

Federal response

In response to the latest discussions, Education Department spokeswoman Dorie Nolt released the following statement Monday morning:

"The federal government takes seriously its responsibility to protect all students from unlawful discrimination, including discrimination based on sex. Title IX prohibits discrimination based on sex, including gender identity and failure to conform with sex stereotypes, in all schools that receive federal funds.

However, Title IX explicitly provides an exemption for schools controlled by religious organizations to the extent that the institution asserts that Title IX's application would not be consistent with the organization's religious tenets. Thus, the statute prohibits the Department's office for civil rights from enforcing many of Title IX's provisions against the small subsection of schools that qualify for this exemption. OCR vigorously enforces Title IX, including its prohibition against gender identity discrimination, at every other school that receives federal funds."

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