For many LGBTQ survivors there are limited options for reporting and accessing care after an assault. On top of common misconceptions about sexual assault, LGBTQ people also experience the additional rape myths rooted in homophobia and transphobia, which creates barriers to reporting. Some of these barriers are:
- Limited medical and counseling care options for people who experienced same-sex sexual violence
- Invalidating same-sex sexual violence reports
- Failure to provide academic or housing accommodations to survivors of same-sex sexual violence
Sometimes LGBTQ survivors face additional reprisal from schools due to other misconceptions about race, national origin, disability, or immigrant status. However, every student has the right to an education free of violence. It is a school’s responsibility to ensure the safety of all its students. If you believe that your school administration may be fostering a hostile environment, here are some FAQ to assist:
1. How do I know if I am being discriminated against based on being a survivor and LGBTQ?
LGBTQ survivors commonly encounter invalidation and institutionalized dismissal of their experiences. Due to misconceptions about same sex sexual violence many schools do not recognize same sex sexual assault or do not have appropriate responses for LGBTQ survivors. LGBTQ survivors also face additional discrimination from homophobic and transphobic beliefs that may inform school officials’ decision making. Additionally, LGBTQ survivors who encounter additional marginalization by race, ability, or citizenship status, have even more difficulty seeking assistance. Some examples of schools discriminating against students are:
- Failing to investigate same sex sexual violence cases or sexual violence against LGBTQ students
- Failure to have sexual misconduct policies inclusive of policies against same sex sexual violence (ie. only defining rape as vaginal penetration with a penis, using heteronormative and/or gendered language)
- Failure to remedy a hostile environment for LGBTQ survivors
- Retaliation against LGBTQ survivors who report sexual violence
2. How do I create a paper trail?
If you believe that you might be discriminated against or that your rights are being violated when you report your sexual assault, make sure to keep documentation of your interactions with school officials. Documenting communications and interactions with an institution is helpful when providing evidence of discrimination for complaints or lawsuits.
- Try to get all communications in writing and/or audio recorded (only in certain states where this is permitted)
- Note taking
- Follow up in person meetings and verbal interactions with emails summarizing the meeting
- Written statements
- Screenshots of discriminatory language or policies
3. What are the recent changes happening with LGBTQ protections?
Recently the Trump administration has signaled major rollbacks of LGBTQ rights in education and employment. Title IX is a federal rights law that prohibits sex discrimination in education in which the Department of Education (ED) has indicated changes to Title IX requirements and enforcement. During the Obama era, the Office for Civil Rights (OCR) released a number of Dear Colleague Letters (DCL) to provide standardized regulations and recommendations for institutions and schools. With this, the OCR released Title IX guidance, the April 2015 DCL and the 2016 DCL (now rescinded) that specifically covered protections for transgender students. These rights included:
- Extending Title IX protections to TGNC students, prohibiting discrimination on the basis of gender identity and;
- Access to public bathrooms and locker rooms and the ability to join athletic programs that aligns with a student’s gender identity, rather than based on their sex or gender assigned at birth.
However, recently Trump’s administration rescinded this guidance undermining interpretations of Title IX which covered a TGNC students’ right to access restrooms aligning with their gender identity. However, revoking the 2016 DCL guidance did not leave transgender and gender nonconforming “students [completely unprotected] from discrimination, bullying, or harassment.”
Since its withdrawal, the OCR has been evaluating complaints of sex discrimination based on decisions made by federal courts, its recent internal memo released June 6, 2017, and current OCR guidance in effect. Previous cases had been left undetermined which further exhibits the necessity of the OCR to provide guidance that would extend students’ civil rights, not dismiss them.
The guidelines within the internal memo to regional directors at the OCR lists specific instances where officers could have “subject matter jurisdiction” meaning that each regional office could have different evaluation procedures for particular cases, including those involving transgender and gender nonconforming students. Some of the examples listed in the memo included:
- Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination
- Failure to assess whether refusal to use a student’s chosen pronouns or name creates a hostile environment
- Failure to take reasonable steps towards addressing sexual and gender based harassment that creates a hostile environment
- Retaliation against transgender students who bring forth complaints
- School’s or district’s failure to remedy a hostile environment towards transgender students
- Different treatment based on a student’s failure to conform to stereotyped notions of masculinity or femininity
Furthermore, the memo explains that OCR officials should be evaluating complaints of sex discrimination whether or not the complainant is transgender. Due to the vagueness of this guidance issued by the OCR, different offices would have varying evaluation procedures for complaints. Although the ED declared that OCR officials were to continue to initiate investigations of sex discrimination by transgender students, the memo fails to include protections for trans students seeking to use restroom facilities aligning with their identity.
For many college students, school is not just a place where they learn, they live, and work on campus as well. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment which also covers students employed by schools, including programs such as work study. Under Title VII it an unlawful employment practice to discriminate against people in employment on the basis of race, color, religion, sex, or national origin. Although the OCR does not enforce Title VII, it can be used collectively with Title IX, as the latter also prohibits sex discrimination, including sexual harassment, in the workplace. Additionally, with the high prevalence rate of violence and discrimination TGNC people in the workforce, at times Title VII has been used to protect trans and gender nonconforming people in employment.
Although historically Title VII has not consistently protected marginalized US workers, past interpretations of Title VII and case law — previous court rulings — had ensured that protections were extended to transgender and gender nonconforming people as well. However, recent actions taken by the Department of Justice (DOJ) has left many puzzled as the future of Title VII protections remains unknown and whether courts will reconsider past decisions. Recently, the DOJ has issued a brief about employment discrimination reversing the 2014 memo the DOJ had distributed asserting that Title VII protected transgender employees from discrimination — not making a definitive statement on LGBQ rights at the time. The July 2017 brief is inconsistent with at least 15 years worth of case law affirming LGBTQ protections in employment. Although this brief is restricted to Title VII, the DOJ signaling massive rollbacks of transgender and gender nonconforming people’s civil rights in education and employment could have serious implications for other federal laws prohibiting sex discrimination and ultimately further marginalizes a vulnerable population.
4. What is Title VI?
Title VI is a federal law that is enforced by the Office of Civil Rights (OCR) which prohibits discrimination based on race, color, and/or national origin in education. All students of color, including LGBTQ students of color, are protected from discriminatory acts that may significantly inhibit them from receiving equal access to education.
Although Title VI does not cover discrimination based on sexual orientation or gender identity, many LGBTQ students of color are discriminated against on multiple fronts due to intersecting oppressions. Therefore, there is a possibility that for LGBTQ students of color to file a Title VI complaint if a college or school district does not reasonably protect its students from violence and discrimination. Additionally, under Title VI and the January and October 2014 Dear Colleague Letters, bullying, harassment, and discrimination based on a student’s actual or perceived color, nationality, heritage/culture (ie. Jewish or Muslim cultures), and race is prohibited in education.
5. How does Title IX and Title II protect LGBTQ students who may also be survivors of sexual violence?
Both Title IX and Title II ensure an equal access to education. The OCR explained that sexual violence denies students from an equal educational access. Title II is to protect students with disabilities from discrimination in education. Additionally, both Title IX and Title II require that schools make the appropriate adjustments to a student’s academics as a necessary measure for them to stay in school and receive an equal access to education. These protections cover survivors who had pre-existing disabilities or may have developed a disability after an assault. Collectively, Title IX and Title II serve to protect survivors with disabilities who are discriminated against because of their status as a survivor and because of their disability.
6. Are there any laws that LGBTQ students are ensured protections?
The Reauthorization of the Violence Against Women Act is a federal law under which all agencies that receive VAWA funds cannot discriminate against trans, GNC, and gender non-binary people because of their sex, gender identity, gender expression, or sexual orientation.
- The agency cannot say it only serves women: it must serve people of all sexes and gender identities.
- You have the right to have your gender identity respected. You cannot be asked about your body or medical or surgical history in order to gain access to services.
- Your legal documents don’t have to match how you identify.
- Agencies may not isolate or segregate clients based on actual or perceived gender identity or sexual orientation.
- If the agency has separate services for men and women, you get to choose which service will be more comfortable and safe for you.
For more information please visit here.
7. What are my on campus reporting options if I’m a LGBTQ student?
Although the recent changes may limit an LGBTQ student’s ability to receive assistance after experiencing discrimination, campus level responses to sexual violence should remain the same. Therefore, the Title IX Coordinator is the best reporting option for students, especially survivors who may not feel safe reporting to campus police. Title IX Coordinators are required to lead an investigation into any sexual assault case that is reported to them. They also have the authority to discipline perpetrators, grant no contact orders, offer counseling and medical services covered by the school and give academic and housing accommodations.
Some schools list campus police or on campus resource centers (ie. women’s or LGBTQ centers) as resources for survivors of sexual assault, however for most schools only the Title IX Coordinator has the authority to properly discipline and make accommodations for students, so most students usually go straight to the school’s Coordinator in order to directly report. Sometimes survivors feel most comfortable disclosing their experiences of sexual violence to a trusted faculty or staff of the school. If you would like assistance with reporting sexual violence to the Title IX Coordinator, then enlisting a trusted faculty or staff as an advisor may be helpful. However, it is important for survivors to be cautious if they wish to remain anonymous because a school’s faculty and staff might be mandatory reporters, or responsible employees. Some schools require faculty and staff to be responsible employees who are obligated under Title IX to report all instances of sexual violence they should reasonably know of to the Title IX Coordinator. Some examples of responsible employees or mandatory reporters are professors, Greek advisors, department chairs, deans, and residential advisors, though who is included under mandatory reporting policies can vary among institutions.
A Note on Confidentiality:
For specifics on anonymously and/or confidential reporting, you can inquire within the Title IX office as each school has its own internal confidential and/or online reporting system and state laws vary. While some schools may have both, others don’t offer these reporting options at all. State laws have different confidentially laws for mental health and other medical professionals. Some staff have privileged communication, meaning that any communication between a client and qualified service provider is protected, while others working at Planned Parenthood or a rape crisis center may be mandatory reporters under varying state laws. If a person has privileged communication then any disclosure of a sexual assault is confidential and cannot be reported to the school without the survivor’s consent. However, it is imperative that before disclosing, survivors are well informed on who they can speak confidentially to and who may be a mandatory reporter.