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North Dakota: Trans Rights Resources for Students

All students—including LGBTQ+ students—have a right to attend school without being subjected to discrimination. Though the North Dakota legislature recently passed several laws which require schools to discriminate against transgender students, those state laws conflict with federal laws that protect students from discrimination in school.

Title IX is a federal civil rights law that prohibits sex discrimination in any school that receives federal funds. The United States Supreme Court has ruled that discrimination against transgender people is discrimination “on the basis of sex.”1 Thus, as the U.S. Department of Education and multiple federal courts across the country have stated, discrimination against transgender students violates Title IX.2 For example, federal courts have ruled that it is discrimination “on the basis of sex” to prevent transgender girls from using girls’ facilities, or transgender boys from using boys’ facilities, simply because they are transgender.3

Additionally, treating transgender students at public schools differently because of their gender identity can violate the Fourteenth Amendment’s Equal Protection Clause.4 School officials who are deliberately indifferent to the bullying or harassment of LGBTQ+ students can also violate those students’ constitutional rights.5

Title IX’s prohibition against transgender discrimination preempts any conflicting state or local laws in North Dakota. The regulations for Title IX say that if there is a “conflict between State or local law and Title IX . . . the obligation to comply with [Title IX] is not obviated or alleviated by any State or local law.”6 In other words, even though recently passed laws in North Dakota ban transgender students from using restrooms that align with their gender identity in public schools7 and colleges8, prohibit school policies requiring the use of a student’s preferred pronouns9, and ban transgender girls from playing on teams aligned with their gender identity10, schools are not allowed to follow these state laws because they conflict with Title IX and the U.S. Constitution. Federal law takes priority. The federal Department of Justice and the federal courts will require school districts to follow federal law regardless of what state law says.

Any school that receives any form of federal funding (which is almost all schools in the United States) is required to investigate and address sex discrimination, including discrimination against LGBTQ+ students.11

When schools fail to respond appropriately, students and their families can turn to the U.S. Department of Education and the U.S. Department of Justice for assistance.

The Educational Opportunities Section of the Civil Rights Division (CRD) at the U.S. Department of Justice and the Office for Civil Rights (OCR) at the U.S. Department of Education can help by enforcing federal laws that protect students from discrimination. CRD and OCR can also provide information to assist schools in meeting their legal obligations.

What To Do If You or Your Child Experiences Discrimination At School

If you or your child have been treated unfairly—for example, treated differently, denied an educational opportunity, harassed, bullied, or retaliated against—because of sexual orientation or gender identity, there are a number of actions you can take:

  1. Notify a teacher or school leader immediately. Write down the details about what happened, where and when the incident happened, who was involved, and the names of any witnesses. Do this for every incident, and keep ongoing notes about what happened, what you or your child did, what the school did or did not do, and keep copies of any related documents or other information.
  2. If you don’t get the help you need, you can consider writing a more formal letter outlining the harassment to the school leaders, school district, college, or university. Sample template for students is here; template for parents is here. Keep records of the letter you send and responses you receive.
  3. If you are not proficient in English, you have the right to ask the school to translate or interpret information into a language you understand. If you have communication needs because of a disability, you have the right to receive accommodations or aids and services that provide you with effective communication.
  4. Consider filing a complaint with the Civil Rights Division of the U.S. Department of Justice at civilrights.justice.gov (available in several different languages), or with the Office for Civil Rights at the U.S. Department of Education at www.ed.gov/ocr/complaintintro.html (to file a complaint in English) or www.ed.gov/ocr/docs/howto.html (to file a complaint in multiple languages). Click here to access a complaint form to fill out.
  5. Counseling and other mental health support can sometimes be helpful for a student who has been harassed or bullied. Consider seeking mental health resources if needed.

Things to Know If You Decide To File a Complaint

  1. File as soon as possible. You need to file a complaint within 180 days of when the discrimination or bullying and harassment happened. If you file a complaint late, explain why and ask for an exception to the deadline.
  2. When the complaint form asks what kind of discrimination you’ve faced, select “sex.”
  3. Complete the entire form. Incomplete complaints won’t be investigated. OCR may contact you if it needs more information to process the complaint.
  4. Provide details. Include in your complaint as many details as you can about the people and events involved, and when and where events occurred.
  5. Complaints may be kept confidential upon request. OCR will do its best to keep complaints confidential. However, it may be impossible for OCR to fully investigate and respond to a complaint without revealing identifying information.
  6. The person who experienced the discrimination doesn’t need to be the one who files the complaint. Family, friends, school staff, or others can file a complaint.
  7. The school cannot take action against you because you filed or participated in a complaint. This is called retaliation, and is also prohibited by Title IX. If you experience retaliation because you filed a complaint, OCR will investigate and address that retaliation as well.

Examples of the kinds of incidents CRD and OCR can investigate:

On her way to use the girls’ restroom, a transgender high school girl is stopped by the principal who bars her entry. The principal tells the student to use the boys’ restroom or nurse’s office because her school records identify her as “male.” Later, the student joins her friends to try out for the girls’ cheerleading team and the coach turns her away from tryouts solely because she is transgender. When the student complains, the principal tells her “those are the district’s policies.”

—

A lesbian high school student wants to bring her girlfriend to a school social event where students can bring a date. Teachers refuse to sell her tickets, telling the student that bringing a girl as a date is “not appropriate for school.” Teachers suggest that the student attend alone or bring a boy as a date.

—

When he starts middle school, a transgender boy introduces himself as Brayden and tells his classmates he uses he/him pronouns. Some of his former elementary school classmates “out” him to others, and every day during physical education class call him transphobic slurs, push him, and call him by his former name. When he reports it to the school’s administrators, they dismiss it, saying: “you can’t expect everyone to agree with your choices.”

—

A community college student discloses he’s gay during a seminar discussion. Leaving class, a group of students calls him a homophobic slur, and one bumps him into the wall. A professor witnesses this, but does nothing. Over the next month, the harassment worsens. The student goes to his dean after missing several lectures out of fear. The college interviews one, but not all, of the harassers, does nothing more, and never follows up with the student.

—

An elementary school student with intersex traits dresses in a gender neutral way, identifies as nonbinary, and uses they/them pronouns. The student’s teacher laughs when other students ask if they are “a boy or a girl” and comments that there is “only one way to find out.” The teacher tells the class that there are only boys and girls and anyone who thinks otherwise has something wrong with them. The student tells an administrator, who remarks “you have to be able to laugh at yourself sometimes.”

Filing a Complaint with Office of Civil Rights (OCR)

Students who believe they have faced discrimination at school based on sexual orientation or gender identity – or because they do not conform with sex stereotypes – may file a complaint with OCR. OCR carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.

When a complaint meets the requirements and standards set out in OCR’s Case Processing Manual, OCR will investigate and appropriately resolve the complaint.

DISCRIMINATION COMPLAINT FORM

1 See Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (holding discrimination on the basis of gender identity or sexual orientation is prohibited under Title VII).

2 The Office of Civil Rights (“OCR”) in the U.S. Department of Education is primarily responsible for enforcing Title IX. In June 2021, the Department of Education issued guidance stating that the Supreme Court’s interpretation of sex discrimination in Bostock applies to Title IX; Title IX therefore prohibits discrimination on the basis of gender identity in schools. See Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (June 22, 2021). This interpretation of Title IX applies to all schools in North Dakota. Cf. Berndsen v. N.D. Univ. System, 7 F.4th 782 (8th Cir. 2021) (giving controlling deference to OCR’s interpretation of Title IX); Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir. 2002) (same).

Further, the Supreme Court’s ruling in Bostock has been applied to Title IX cases by multiple circuit courts. See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied No. 20-1163, 141 S. Ct. 2878 (Mem) (June 28, 2021) (stating that the Supreme Court’s decision in Bostock “guides our evaluation of claims under Title IX”); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 769 (7th Cir. 2023) (“Applying Bostock’s reasoning to Title IX, we have no trouble concluding that discrimination against transgender persons is sex discrimination for Title IX purposes[.]”); Grabowski v. Arizona Bd. of Regents, 69 F.4th 1110, 1116 (9th Cir. 2023) (applying Bostock to a Title IX sexual orientation discrimination claim); Soule by Stanescu v. Connecticut Ass’n of Sch., Inc., 57 F.4th 43, 56 (2d Cir. 2022) (discussing how discrimination based on gender identity is prohibited under Title IX); see also Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 589 (8th Cir. 2022) (discussing how under Bostock and OCR’s Title IX guidance, transgender discrimination is prohibited under federal law).

3 See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied No. 20-1163, 141 S. Ct. 2878 (Mem) (June 28, 2021) (holding that a school policy which prohibited a transgender student from using the restroom aligned with his gender identity violated Title IX and the Equal Protection Clause); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 769 (7th Cir. 2023) (finding transgender student who was banned from using bathroom aligned with his gender identity is likely to succeed on Title IX sex discrimination and equal protection claims); Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044–46, 1049–50 (7th Cir. 2017) (same); Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 (3d Cir. 2018) (“We also agree with the School District’s position that barring transgender students from restrooms that align with their gender identity would itself pose a potential Title IX violation.”).

4 See Grimm, 972 F.3d 586 (school district policy prohibiting transgender student from using bathroom aligned with his gender identity violated Fourteenth Amendment’s equal protection clause); A.C. by M.C., 75 F.4th at 769 (transgender student banned from using bathroom aligned with his gender identity likely to succeed on equal protection claim); Whitaker ex rel. Whitaker, 858 F.3d at 1049–50 (same); see also Brandt v. Rutledge, No. 4:21CV00450, 2023 WL 4073727 (E.D. Ark. June 20, 2023) (affirmatively discussing Grimm’s equal protection analysis for transgender people and finding a ban on gender-affirming care for minors violated the equal protection clause, substantive due process, and the First Amendment).

5 See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999) (deliberate indifference of school officials to harassment of students can violate the Fourteenth Amendment’s equal protection clause); Est. of Olsen v. Fairfield City Sch. Dist. Bd. of Educ., 341 F. Supp. 3d 793 (S.D. Ohio 2018) (school officials’ failure to enforce bullying policies could violate student’s Fourteenth Amendment substantive due process rights); L.O.K v. Greater Albany Public Sch. Dist. 8J, No. 6:20-cv-00529-AA, 2022 WL 2341855 (D. Or. June 28, 2022) (nonbinary student stated viable Equal Protection and Title IX claims against former principal and school district that failed to investigate bullying and harassment based on student’s gender; a jury ultimately found for the student on these claims, as well as a discrimination claim under state law, awarding them over $317,000).

6 34 C.F.R. § 106.6(h).

7 H.B. 1522, 68th Leg., § 2 (N.D. 2023) (codified at N.D. Cent. Code § 15.1-06-21).

8 H.B.1473, 68th Leg,. § 4 (N.D. 2023) (codified at N.D. Cent. Code § 15-10-68).

9 H.B. 1522, 68th Leg., § 1 (N.D. 2023) (codified at N.D. Cent. Code § 14-02.4-15.2).

10 H.B. 1249, 68th Leg., § 1 (N.D. 2023) (codified at N.D. Cent. Code § 15.1-39-02); H.B. 1489, 68th Leg., § 1 (N.D. 2023) (codified at N.D. Cent. Code § 15-10.6-02).

11 See 20 U.S.C. § 1681 (a), (c). The type of federal financial assistance that makes a school subject to Title IX includes non-monetary, in-kind assistance. See 34 CFR 106.2(g)(2)-(3).