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Title IX Already Protects LGBT Students, Amendment Unnecessary, Group Says

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The Senate voted down an amendment to the proposed overhaul of the Elementary and Secondary Education Act that was designed to protect lesbian, gay, bisexual, and transgender students from discrimination and harassment in public schools Tuesday.

But such an amendment is unnecessary because Title IX already applies to those students, the National School Boards Association said.

While today's 52-45 vote may be over, this issue is far from going away.

The Student Non-Discrimination Act, proposed by Sen. Al Franken, D-Minn., has been proposed in previous sessions of Congress and endorsed by the White House. It would have amended the ESEA, currently known as No Child Left Behind, with the aim of protecting students from harassment based on "actual or perceived sexual orientation or gender identity."

Supporters of the measure—including the co-sponsor of the proposed ESEA overhaul, Sen. Patty Murray, D-Washington—made passionate pleas for its passage, telling stories about cruel harassment of young gay students on the Senate floor Tuesday.

"The Student Non-Discrimination Amendment would afford LGBT students similar protections that currently exist for students who are bullied, based on race, gender, religion, disability, and country of national origin," Murray said. "So unless you think LGBT students don't deserve protection from discrimination the way other students do—this should be an easy one to support."

But a growing number of federal courts, as well as the U.S. Departments of Justice and Education have all said that Title IX's protections for sex and gender extend to sexual orientation and gender identity, said Francisco M. Negrón, Jr., the associate executive director and general counsel for the National School Boards Association.

And Franken's amendment would lower the standard of liability for LGBT students below that of other civil rights complaints under existing federal civil rights laws, opening schools up to increased liability and creating confusion in the courts about conflicting legal standards between the Student Non-Discrimination Act and Title IX, Negrón said in a phone interview before the Senate voted on the amendment.

"There's a lessening of the standard," Negrón said. "It's going to confuse courts. Why are we using a different standard for LGBT students when there's already an existing standard for sex and gender?"

Just last week, the Department of Education's office for civil rights forged an agreement with a school district under Title IX after a transgender boy complained  he was being denied access to the boys' facilities and prohibited from rooming with his male peers on an overnight field trip. The department has also issued civil rights guidance about many issues related to LGBT students, including schools' responsibility to address bullying and harassment of LGBT students under Title IX.

Perhaps because some don't understand the broad applications of Title IX or because they want more clear language in federal law, supporters of Franken's proposal suggest a new law is necessary to ensure all students' rights are protected.  But groups like the National School Boards Association argue that what is actually needed is a clear understanding of schools' existing obligations under Title IX.

Members of Congress called for further clarity about these issues in a letter to Education Secretary Arne Duncan Tuesday.

"We recognize the unprecedented efforts the Department has made under your leadership to address the many challenges LGBT students face in our nation's schools," said the letter, which had 68 signatures. "Last year, the Office of Civil Rights clarified that Title IX protections against sex-based discrimination extend to discrimination based on gender identity or gender nonconformity ... We urge you to build on these initial steps by developing, finalizing, and issuing guidance that clearly outlines schools' obligations to protect LGBT students from discrimination under Title IX."

The letter urged Duncan to provide a timeline under which such guidance would be released.

GLSEN, which supported Franken's amendment, issued this statement after it failed:

"It is extremely disappointing that Student Non-Discrimination Act did not pass today. The federal government has an established role in protecting students from discrimination based on sex, race and religion. We call on Congress to codify non-discrimination protections into law for sexual orientation and gender identity/expression. The evidence is clear and compelling that LGBT students need those protections."


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