Transgender Issues for South Dakota School Districts (Part 2)


At the federal level, there are no explicit legal protections for transgender students.

Title IX of the Education Amendments of 1972 (Title IX) addresses discrimination on the basis of sex in schools receiving federal funding. However, although Title IX does not specifically prohibit discrimination on the basis of sexual orientation, gender identity or gender expression, it has been used to address sexual or gender-based harassment in schools based on gender stereotypes. The Office for Civil Rights (OCR) of the U.S. Department of Education’s Revised Sexual Harassment Guidance states, “gender-based harassment . . . is also a form of sex discrimination to which a school must respond.”

Recently, claims under the First Amendment and the Fourteenth Amendment have been made in gender identity cases. In 2000, a Massachusetts court found that a transgender student had the First Amendment right to wear clothes consistent with her gender identity and a due process interest in her personal appearance.

Today, approximately twenty states have some type of protections for transgender persons on the basis of gender identity or expression. Therefore, transgender people in the majority of states have no specific legal protections based on their gender identity.