A law student's article in the Texas Review of Law and Politics Journal seeks to leverage Title IX's prohibition on sex discrimination to offer fully protection against harassment to transgender students. Citing statistics from GLSEN, the author, Tina Sohaili, points out that transgender students are targeted for bullying and harassment more frequently than any other student group. Such harassment frequently target the students' personal characteristics, such as appearance, clothes, and voice, as not matching the masculine or feminine stereotypes associated with the transgender students' assigned sex.
Drawing on analogous employment discrimination law, Sohaili argues that the liability Title IX imposes on school districts that ignore sexual harassment between peers covers peer harassment motivated by transgender students' gender nonconformity. She supports this argument by pointing out that some lower courts have already recognized harassment on the basis of gender nonconformity a subset of sex discrimination in cases that do not involve transgender students.
Importantly, while Sohaili argues that courts should construe Title IX to afford this protection to transgender students, she recognizes that courts have not universally recognized sex discrimination law's application to gender nonconformity in the employment context. Therefore, while this interpretation affords the best protection to transgender students under federal law, even stronger protection would result from changes to the law -- such as that proposed in the Student Nondiscrimination Act -- which expressly prohibit discrimination on the basis of not only sex, but actual or perceived sexual orientation, gender identity, or expression.
Citation: Tina Sohaili, Securing Safe Schools: Using Title IX Liability to Address Peer Harassment of Transgender Students, 20 Tex. Rev. L & Politics 79 (2011).