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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.