Title IX ensures protections for transgender students

This Washington Watch article appeared in the Spring 2022 issue of The Classroom Teacher.

Gov. Greg Abbott has directed the Department of Family and Protective Services to investigate whether sex-reassignment and puberty-blocking treatments for minors constitute child abuse as outlined in a Feb. 18 opinion issued by Attorney General Ken Paxton. But enforcement is on hold as legal challenges to the governor’s order mount.

Federal officials also are working to shield families from the mandate. On March 31, the U.S. Department of Justice issued a letter to attorneys general around the country to reinforce that “laws and policies that prevent individuals from receiving gender-affirming medical care may infringe on federal constitutional protections.”

The conflicting directives further complicate matters for teachers, who have a duty to report child abuse. In Abbott’s letter to the Department of Family and Protective Services, he highlighted the requirement of professional employees, including teachers, to report suspected child abuse within 48 hours. The department includes the investigative Child Protective Services division.

The governor’s letter is of dubious legality, as the governor has no authority to issue directives outside of state agency rulemaking procedures and the powers specifically delegated to him by the Texas Legislature during emergencies. The attorney general’s opinion likewise is advisory only.

Some county and district prosecutors have stated that they have no intention of complying with the governor’s letter or giving any credence to the opinion of the attorney general, which has been described as “politically motivated and legally incorrect.”

The American Civil Liberties Union and Lambda Legal have sued the state on behalf of a family that was under investigation for getting medically necessary care for their transgender teenager. In mid-March, the Texas 3rd Court of Appeals reinstated a lower court’s temporary injunction blocking the state from investigating parents solely because they provide gender-affirming care to their children. In response, Paxton has asked the Texas Supreme Court to intervene.

The problem for teachers is that failure to report suspected child abuse can result in criminal charges. Given the conflicting directives and uncertainty, TCTA members with questions about a specific situation are strongly encouraged to call the TCTA Legal Department well within the 48-hour requirement to report suspected child abuse for advice from a TCTA staff attorney. Information about how to report is available at https://www.dfps.state.tx.us/contact_us/report_abuse.asp. Note that reports can be made anonymously, but DFPS does not provide a confirmation number for an anonymous report.

The fact that suspicion of child abuse depends on the political ideology of the enforcers of that reporting requirement creates yet another burden on educators. The actions of Abbott and Paxton also put teachers in a difficult position regarding students’ rights of privacy and parents’ rights to raise their children.

The attorney general opinion does not limit its analysis to permanent gender-reassignment surgery, but also describes the use of temporary puberty blockers as constituting child abuse. Read strictly, the opinion and the letter would require teachers and other professionals to report any suspected case of gender reassignment or use of puberty blockers to law enforcement or the Department of Family and Protective Services.

As the use of medically necessary gender transition services is recognized by the American Medical Association, it’s not clear that the treatment with hormone suppressors in minors by physicians and parents pursuant to a comprehensive treatment plan would meet the state’s definition of child abuse.

Abbott and Paxton’s recent effort follows passage of House Bill 25 in the third special session of the Texas Legislature in October. HB 25, which became law on Jan. 18, 2022, requires that students compete in UIL athletic competitions based on their biological sex as stated on their official birth certificate, not their gender identity. Transgender advocates and parents of transgender children have argued that HB 25 unfairly targets children who may see sports as a refuge.

Texas is not the only state attempting to limit the rights of transgender youth. Since 2020, 11 other states, including Florida, Arkansas and Iowa, have implemented legislation preventing transgender girls from playing girls sports in high schools. Lawmakers in Oklahoma, Arizona, Kentucky and South Carolina passed similar bills this spring. In Georgia, after defeating an outright ban, lawmakers approved an amended bill that would give a high school athletic association the ability to ban transgender girls from playing sports if it “determines that it is necessary and appropriate.”

Title IX in play

With these laws on the books, LGBTQ youth, their families and advocates now look toward federal guidance and civil rights statutes to ensure justice and equality for all students.

Title IX bans discrimination based on sex in any type of education program. Title IX states that no person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance. The interpretation of the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County and the U.S. Office of Civil Rights’ guidance clarifies that Title IX’s prohibition of “discrimination on the basis of sex” includes discrimination based on sexual orientation and gender identity.

Advocates assert that transgender people have the right to equal access of educational opportunities under Title IX, requiring schools to respect transgender students’ gender identity with regard to dress codes, names, pronouns, access to facilities and participation in school-sanctioned activities, including sports. The U.S. Departments of Education and Justice have provided guidance to schools that explains the rights transgender students have under Title IX and the requirements for schools to honor them.

The reporting of a sexual harassment violation can be made through the Title IX Coordinator or to any teacher or staff member, which triggers the school’s obligation to respond and immediately offer supportive measures. When Title IX is violated, it requires institutions to investigate and address the reported discrimination or abuse at hand to find out if the behavior made it harder for students to learn or stay in school.

In K-12 schools, regulations define sexual harassment actionable under Title IX to mean one of two types of behavior:

1. “conditioning the provision of an aid, benefit or service of the recipient on an individual’s participation in unwelcome sexual conduct” (often called quid pro quo harassment) and,
2. “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” If unsatisfied, the complainant may submit a formal complaint that begins a full investigation, including a reporting to the Education Department.

When the Office of Civil Rights identifies concerns or violations, resolutions often require educational institutions to adopt effective anti-harassment policies and procedures, train staff and students, and take other steps to restore a nondiscriminatory environment. At times, districts are fined for Title IX violations, but there is little precedent for fining teachers and support staff. Employees may face disciplinary action by their districts and if there are criminal charges filed against an individual, a loss of employment and prison sentence may be an outcome.

Following Gov. Abbott’s directive to investigate whether sex-reassignment and puberty-blocking treatments performed on minors constitute child abuse, the U.S. Department of Health and Human Services reaffirmed its commitment to protecting young Americans who are targeted because of their sexual orientation or gender identity, and supporting their families and caretakers.

On March 2, Secretary Xavier Becerra announced several steps his agency has taken, including:

1. releasing guidance to state child welfare agencies that makes clear that states should use their child welfare systems to advance safety and support for LGBTQI+ youth, which importantly can include access to gender affirming care;
2. releasing guidance on patient privacy, clarifying that, despite the Texas government’s threat, health care providers are not required to disclose private patient information related to gender affirming care;
3. issuing guidance making clear that denials of health care based on gender identity are illegal, as is restricting doctors and health care providers from providing care because of a patient’s gender identity.

“Any individual or family in Texas who is being targeted by a child welfare investigation because of this discriminatory gubernatorial order is encouraged to contact our Office for Civil Rights to report their experience,” Becerra said in a statement.

The U.S. House of Representatives in February passed the Equality Act, a landmark LGBTQ rights bill that prohibits discrimination based on sexual orientation and gender identity in numerous arenas, including employment, housing, education and public accommodations. Although the bill is largely supported along party lines and faces an uncertain future in the Senate, President Joe Biden has said its passage is a priority for his administration.

As such, the federal government will use all measure of guidance and regulations to uphold the civil rights of LGBTQ individuals. It is anticipated that legal challenges at the intersection of Title IX and state laws will continue to play out in the courts.

This article is not a substitute for legal advice. Van Scoyoc Associates, TCTA’s retained lobby firm in Washington, D.C., contributed to this article.