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- Title
Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students.
- Authors
KIMMEL, ADELE P.
- Abstract
LGBT students are bullied at dramatically higher rates than other students. School bullying generally, and the targeting of LGBT students in particular, has recently garnered national attention as a serious problem that needs to be solved. Just as society is increasingly recognizing the destructive effects of school bullying and accepting the LGBT community, federal courts and agencies are increasingly holding school districts accountable under Title IX when schools fail to protect LGBT students from gender-based bullying. This Feature discusses the emerging importance of Title IX litigation and enforcement as a tool to stop peer-on-peer harassment of LGBT students in elementary and secondary schools. Federal courts and agencies consistently recognize that bullied LGBT students may bring sex discrimination claims under Title IX based on a theory of gender stereotyping. Some even view anti-LGBT animus as per se sex discrimination. I argue that Title IX's effectiveness in addressing the problem is limited by overly narrow judicial and agency views of what constitutes actionable sex discrimination. Federal courts and agencies often focus on stereotypes about overt masculinity and femininity and fail to consider stereotypes about the appropriate roles of girls and boys and the relationships between them. They also offer conflicting views on whether bullying based on a student's actual or perceived LGBT status constitutes per se sex discrimination. If federal courts and agencies consistently considered the full spectrum of gender stereotypes and recognized that bullying based on anti-LGBT animus is also sex discrimination, Title IX would better protect LGBT students from harassment. This Feature also discusses the need for legislation that expressly prohibits discrimination based on actual or perceived sexual orientation and gender identity. I argue that this express enumeration is needed to ensure both that schools clearly understand their duty to prevent a hostile educational environment and that LGBT students clearly understand their right to an equal education. Even if Congress amended Title IX or passed new legislation to enumerate LGBT protections--and federal courts and agencies interpreted Title IX as broadly as I advocate--LGBT bullying would not disappear. Title IX cannot carry the weight of this problem on its own. Other reforms are needed, including school policies with enumerated protections for LGBT students, mandatory professional development for school staff, anti-bullying training and education programs for students, and district accountability for reporting incidents of LGBT bullying. This is a complex problem that requires a multipronged solution.
- Subjects
PREVENTION of school bullying; LGBTQ+ students; TITLE IX of the Education Amendments of 1972; SEX discrimination in education; LEGAL status of LGBTQ+ students; PRICE Waterhouse v. Hopkins; ONCALE v. Sundowner Offshore Services Inc. (Supreme Court case); CRIMES against LGBTQ+ people; ACTIONS &; defenses (Law)
- Publication
Yale Law Journal, 2016, Vol 125, Issue 7, p2006
- ISSN
0044-0094
- Publication type
Article