Today, HRC expressed grave concern over the decision by U.S. Secretary of Education Betsy DeVos to begin a process to rescind 2011 Title IX guidance related to schools' obligations to address sexual harassment, including sexual violence.
Title IX of the Education Amendments of 1972 (Title IX) explicitly prohibits sex discrimination in any educational program or activity that receives federal funding. While historically known for its impact on women’s athletics admissions, Title IX’s prohibition on sex discrimination, as a matter of law, also requires schools to address sexual harassment, including sexual violence, as forms of sex discrimination. In addition, Title IX protects students from discrimination on the basis of gender identity and sexual orientation, as evidenced by continuing case law, guidance previously issued by the Department of Education, and school district settlements to this effect.
“With today’s announcement, Betsy DeVos is insinuating that she would prefer to take America back to a time when it was more difficult for survivors of sexual assault to receive justice,” said Sarah Warbelow, legal director for the Human Rights Campaign. “For the LGBTQ community, which faces disproportionate levels of sexual assault and violence, this decision sends a strong signal that the U.S. Department of Education will not use its full power to protect them from harm. This signal is only amplified and worsened by the actions the department took earlier this year when it callously rescinded guidance aimed at protecting transgender students.”
LGBTQ Americans are disproportionately affected by sexual assault and harassment and the stigma that many LGBTQ people face can make it more difficult for survivors to report. Studies suggest that around half of transgender people and bisexual women will experience sexual violence at some point in their lifetimes. According to the Youth Risk Behavior Survey, a national survey of high school students, lesbian and bisexual women and gay and bisexual men experienced higher rates of sexual assault than their straight counterparts. In addition, a 2015 study by the Association of American Universities found that 60 percent of gay and lesbian students and nearly 70 percent of bisexual students report being sexually harassed on campus.
Today’s action comes only months after the Department of Education elected to rescind guidance it had issued, consistent with established case law on the matter, to provide schools with best practices about eliminating discrimination in education on the basis of gender identity. The Department of Education, through a series of “Dear Colleague” letters, guidance and FAQ documents, has previously clarified that Title IX’s prohibition on sex discrimination includes gender-based harassment of students, including harassment by a person of the same sex, harassment for “failing to conform to stereotypical notions of masculinity or femininity,” discrimination against transgender and gender nonconforming students, and failure to respect transgender students’ gender identity when operating single-sex classes.