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Dear Colleague Letter

OFFICE OF THE ASSISTANT SECRETARY



Page 8
    sex, or for failing to conform to stereotypical notions of masculinity and femininity.  Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target. 
    Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination.  When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX.  The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment.  In this example, the harassing conduct was based in part on the student’s failure to act as some of his peers believed a boy should act.  The harassment created a hostile environment that limited the student’s ability to participate in the school’s education program (e.g., access to the drama club).  Finally, even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.
    In this example, the school had an obligation to take immediate and effective action to eliminate the hostile environment.  By responding to individual incidents of misconduct on an ad hoc basis only, the school failed to confront and prevent a hostile environment from continuing.  Had the school recognized the conduct as a form of sex discrimination, it could have employed the full range of sanctions (including progressive discipline) and remedies designed to eliminate the hostile environment.  For example, this approach would have included a more comprehensive response to the situation that involved notice to the student’s teachers so that they could ensure the student was not subjected to any further harassment, more aggressive monitoring by staff of the places where harassment occurred, increased training on the scope of the school’s harassment and discrimination policies, notice to the target and harassers of available counseling services and resources, and educating the entire school community on civil rights and expectations of tolerance, specifically as they apply to gender stereotypes.  The school also should have taken steps to clearly communicate the message that the school does not tolerate harassment and will be responsive to any information about such conduct.17 

Section 504 and Title II:  Disability Harassment

  • Several classmates repeatedly called a student with a learning disability “stupid,” “idiot,” and “retard” while in school and on the school bus.  On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage.  The student complained to his teachers and guidance counselor that he was continually being taunted and teased.  School officials offered him counseling services and a

17 Guidance on gender-based harassment is also included in OCR’s Sexual Harassment Guidance, available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.


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Last Modified: 10/26/2010