The Justice Department has intervened in a New York court case to argue that Title IX’s protections against sex discrimination apply to gender identity as well. The case involved a private law suit against a school district where a student, “J.L.” experienced harassment because, in the eyes of his peers, he had “feminine characteristics.” The school, according to the lawsuit, did little to intervene.
According to court documents,
“J.L. is a fourteen year old male whose gender expression does not conform to male stereotypes. J.L. dyes his hair, wears make-up and nail polish, and engages in physical expressions that are stereotypically female, e.g., swinging his hips and singing in a high pitched voice.”
The complaint alleges that when J.L. was in seventh grade, students at the school subjected him to verbal sex-based harassment on a regular basis. His father complained multiple times to the school, but “the district failed to investigate, or conducted incomplete investigations of the allegations.”
Title IX declares that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The Justice Department argued that because the discrimination against the teenager was based in sex stereotyping and gender roles, J.L is actually protected by Title IX’s provision against “sex discrimination.” In other words, “sex discrimination” can also include discrimination against individuals whose gender identity does not correspond with sex stereotypes. This reasoning has been adopted by federal courts to apply in employment discrimination cases, such as Prowel v. Wise Business Forms, in which the Women’s Law Project and Legal Momentum submitted an amicus brief [PDF] on behalf of 21 organizations representing women in nontraditional occupations. The brief argued that if sex discrimination claims fail anytime the record also contains evidence of sexual orientation discrimination, Title VII would be eviscerated as to the very women who are most victimized in the workplace: women in nontraditional employment.
Gay rights leaders have welcomed the Justice Department’s intervention on behalf of J.L., and by extension, other students who face harassment because of their gender identity. Their intervention, along with the recently passed hate crimes law, shows promise in terms of securing and protecting the rights LGBT individuals, which ideally includes passage of a trans-inclusive Employment Nondiscrimination Act.