How the Next Administration and Congress Can Protect the Rights of LGBTQ+ Students in Schools

Let me start with a disclaimer: I’m in this (unfortunately) odd situation of having lived a policy problem that I’m working to address. Being a member of the LGBTQ+ community and working in education policy, it can be difficult to separate my personal experiences of attending public schools in Arlington, Texas from the work to which I have been committed over the course of my professional career. I’d like to think that I do a fairly good job of it though: for instance, I don’t imagine that every member of the LGBTQ+ community got highlights and a reverse perm the week before the Spring Fling. That was a personal experience.

However, regardless of whether or not you have experienced being a member of the LGBTQ+ community in school, one thing is objectively clear: over the course of the last four years, the executive branch of the federal government has led the assault against the rights of the LGBTQ+ community—and students in particular.

The Trump administration has treated LGBTQ+ students with downright animosity, an approach it seems to deem a cheap way to score points with an ignorant and callous voter base.

The Trump administration has treated LGBTQ+ students with downright animosity, an approach it seems to deem a cheap way to score points with an ignorant and callous voter base. By rescinding already existing guidance that protected LGBTQ+ students, and by proposing and enacting new guidance designed to harm members of the LGBTQ+ community, the executive branch has gone beyond failure in its obligation and duty to protect LGBTQ+ students: it has acted with malicious intent in order to deprive students of a safe and healthy school environment, and LGBTQ+ students of the ability to thrive outside of school.

What is so particularly destructive is that this current administration undertook these actions following the Obama administration, when the federal government took unprecedented action to protect the rights of LGBTQ+ students and educators in schools. In 2017, the Trump administration had all the tools and blueprints that its predecessor had put into place in order to continue to build protections for LGBTQ+ students. Instead, they took deliberate steps to strip away the basic rights of LGBTQ+ students in schools.

In 2021, the federal government must renew its commitment to protecting the rights of all students, both within and beyond school. Here’s how.

The next administration must make a commitment to protect the rights of LGBTQ+ students and educators.

1. Protect the rights of LGBTQ+ students designated under Title IX. Title IX of the Education Amendment of 1972 (Title IX) prohibits sex discrimination in educational programs and activities operated by recipients of federal assistance. As a condition of receiving federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities. During the Obama administration, this prohibition encompassed discrimination based on a student’s gender identity; for purposes of the Department of Education (ED)’s enforcement of Title IX, a student’s sex was to be determined by the student’s gender identity. For members of the LGBTQ+ community, particularly members of the transgender community, this interpretation of gender and sex under Title IX is critical so that schools cannot exclude, separate, or deny benefits to transgender students based on their gender identity, as well as other members of the LGBTQ+ community.

Moving forward, ED must interpret Title IX so as to protect students from gender identity discrimination, and so that practice is consistent with interpretations of other federal laws prohibiting sex discrimination. ED should consider a student’s self-described gender identity to be their sex for purposes of Title IX, and ED Title IX guidance and regulations must be enforced accordingly.

2. Collect data on the well-being of LGBTQ+ students in public schools. The Office of Civil Rights (OCR) has authority under section 203(c)(1) of the Department of Education Organization Act (20 U.S.C. 3413(c)(1)), and the regulations implementing several of the civil rights statutes that it implements, to collect data that are necessary to ensure compliance with civil rights laws within the office’s jurisdiction—specifically, that OCR “may determine to be necessary to enable [OCR] to ascertain whether the recipient has complied or is complying” with these laws and implementing regulations. (See 34 CFR § 100.6(b), 34 CFR § 106.71, and 34 CFR § 104.61.)

In the U.S. Department of Education’s biannual data collection, the Civil Rights Data Collection (CRDC), the Office of Civil Rights should track the well-being of LGBTQ+ students in schools that receive federal funding. Specifically, the CRDC should ask districts questions in order to determine if they have in place practices which protect the rights of LGBTQ+ students in schools, such as LGBTQ+-inclusive curricula or anti-bullying policies.

3. Competitive grants should include a commitment to protecting the rights of LGBTQ+ students, where appropriate. In the competitive grantmaking process, additional consideration should be given to applicants who include in their proposal how funds may be used to protect the rights of LGBTQ+ students by the grantee, and provide a safe and healthy school climate for such students. For example, Investing in Innovation, or i3 (a competitive grant program designed to foster innovative practices in local education agencies), grantees could be asked to explain how they will ensure the protection of LGBTQ+ students with the funds utilized to foster innovation in schools; and teacher preparation programs that receive grants through the Teacher Quality Partnership grants could be asked to prioritize preparing teachers to create supportive classroom contexts for LGBTQ+ students. A cross-cutting Secretary’s Priority (a formal commitment from ED in its management of discretionary grant programs) would be one way to allow ED to do this across both K–12 and higher education programs.

Furthemore, the administration must protect the rights and safety of LGBTQ+ students and educators beyond schools.

4. The U.S. Department of Health and Human Services (HHS) must reinstate the nondiscrimination policy for transgender people, including transgender young people, in health care. The transgender community faces considerable barriers to accessing high-quality health care—but in 2020, access to health care became even more difficult for the transgender community due to the removal of this policy.

LGBTQ+ youth are at a higher risk for substance use, bullying, isolation, anxiety, depression, and suicide as compared to other youth. And often, LGBTQ+ youth do not receive high-quality health care—due to stigma, or lack of health care provider literacy regarding LGBTQ+ health issues.

LGBTQ+ youth are at a higher risk for substance use, bullying, isolation, anxiety, depression, and suicide as compared to other youth. And often, LGBTQ+ youth do not receive high-quality health care.

And yet, over the course of the Trump administration tenure, HHS has taken steps to construct further barriers to access for members of the LGBTQ+ community. HHS plans to no longer enforce, and in fact in some cases to repeal, regulations prohibiting discrimination based on gender identity and sexual orientation in HHS grant programs. They have announced plans to roll back regulations interpreting the Affordable Care Act’s nondiscrimination provisions to protect transgender people, and removed questions about LGBTQ+ people that Centers for Independent Living must fill out each year in their Annual Program Performance Report, which helps HHS evaluate programs that serve people with disabilities. These federal provisions and reporting requirements play critical roles in protecting the LGBTQ+ community from discrimination and prejudice and collecting data on any discrimination that may exist.

5. The U.S. Department of Housing and Urban Development (HUD) must prohibit federally funded shelters from discriminating against the LGBTQ+ community. In 2020, HUD sought to allow federally funded shelters to turn away transgender people for religious reasons. This rule would have given thousands of shelters the authority to utilize federal funding to discriminate against the LGBTQ+ community.

This is only the most recent of a litany of harmful actions that the current administration has taken through HUD, including the withdrawal of two important agency policies designed to protect LGBTQ+ people experiencing homelessness, and rescinding federal guidance for shelters on how best to serve members of the LGBTQ+ community.

LGBTQ+ youth represent as much as 40 percent of the homeless youth population. Furthermore, LGBTQ+ young people are 120 percent more likely to experience homelessness than non-LGBTQ+ youth. Trans youth are especially at risk: One in five transgender people will experience homelessness in their lives. To target the LGBTQ+ community with discriminatory policies, such as the proposed rule mentioned above, is to target a community which already faces significant barriers to housing. The new administration must ensure shelters do not discriminate against the LGBTQ+ community.

Congress must enact legislation which will prevent discrimination against LGBTQ+ students, educators, principals, and staff.

1. Congress must enact the Equality Act (H.R. 5 and S. 788) in order to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes. Introduced by Representative David Cicilline (D-RI) and Senator Jeff Merkley (D-OR) with over 200 cosponsers, the Equality Act would would provide “consistent and explicit anti-discrimination protections for LGBTQ+ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.” This would ensure that teachers, no matter the state of their employment, could not be fired on the basis of who they are or who they love.

2. Congress must also enact the Safe Schools Improvement Act (H.R. 2653) to amend the Elementary and Secondary Education Act of 1965, which will take action to prevent bullying and harassment of students. The Safe Schools Improvement Act (SSIA), introduced by Representative Linda Sanchez (D-CA) with over 200 cosponsors, would amend the Elementary and Secondary Education Act (ESEA) to require school districts in states that receive ESEA funds to adopt codes of conduct specifically prohibiting bullying and harassment, including on the basis of race, color, national origin, sex, disability, sexual orientation, gender identity, and religion. This would help to ensure that LGBTQ+ students can attend school without worrying about bullying or harassment based on who they are.

The executive and legislative branches can and must come together in 2021 to do what they can to protect LGBTQ+ students and educators in school. The next administration must lead the charge in restoring and protecting the rights of the LGBTQ+ community across the nation.