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Gender / Sexual Orientation
Colorado Anti-Discrimination Law
Colorado follows state anti-discrimination and civil rights laws and guidance. On May 20, 2021, Colorado H.B. 21-1108 was signed into law expanding prohibitions against discrimination. The law calls out the need to protect all regardless of “disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry” in all places of public accommodation, including schools.
In addition, with respect to gender identity, the Colorado Department of Regulatory Agencies’ Civil Rights Commission issued rules (3 CCR 708-1) that state “All [public] covered entities shall allow individuals the proper use of gender-segregated facilities that are consistent with their gender identity. Gender-segregated facilities include but are not limited to, restrooms, locker rooms, dressing rooms and dormitories.” The term “gender identity” is in turn defined by the rules as follows: “Gender identity” means an innate sense of one’s own gender.”
A Colorado court case in 2013 supported the right of a 6 year old transgender student in Fountain School district to use the restroom that aligned with her gender identity.
For questions regarding state anti-discrimination law and guidance, please contact:
Colorado Department of Regulatory Agencies
Colorado Civil Rights Division
Notice of Proposed Federal Rulemaking
On June 23, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released proposed amendments to the Department’s Title IX regulations. The proposed regulations aim to ensure full protection under Title IX for students, employees, and others and end all forms of sex discrimination in federally funded elementary and secondary schools and postsecondary institutions. The agency’s goal is to ensure that no person experiences sex discrimination in education, that all students receive appropriate support as needed to access educational opportunities, and that school procedures for investigating and resolving complaints of sex discrimination, including sex-based harassment and sexual violence, are fair to all involved. The proposed regulations would also clarify Title IX’s coverage of discrimination based on sexual orientation and gender identity, as well as sex stereotypes, sex characteristics, and pregnancy or related conditions.
The Department’s proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register.
Additional information on the proposed rule, including a summary with background information and a fact sheet, is available here.
The unofficial version of the proposed rule is available here.
Until any new regulations go into effect, the 2020 regulations remain in effect. For more information on the 2020 regulations, visit: Sex-Based Harassment.
Title IX prohibits discrimination on the basis of sex in education programs that receive federal funding. This prohibition very likely covers discrimination based on gender identity and sexual orientation, as those are forms of sex discrimination. Several federal courts have said as much, as have the U.S. Department of Education and U.S. Department of Justice. For more information, see the following:
- Grimm v. Gloucester County School Board, 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), reh’g en banc denied, 976 F.3d 399 (4th Cir. 2020), petition for cert. denied, No. 20-1163 (June 28, 2021)
- (Guidance) June 16, 2021 U.S. Department of Education Notice of Interpretation: 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
- (Guidance) March 26, 2021 U.S. Department of Justice Memorandum Regarding Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972
Title IX interpretation, as it relates to sexual orientation and gender identity, has varied with each administration. In June 2021, President Biden’s administration affirmed that Title IX prohibits discrimination on the basis of gender identity and sexual orientation in all education institutions that receive federal funding. For more information, see the following:
- June 23, 2021 Letter to Educators on Title IX's 49th Anniversary
- April 6, 2021 Letter to Students, Educators, and other Stakeholders re Executive Order 14021
- March 8, 2021 Executive Order 14021 on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity
- February 4, 2021 Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Persons Around the World
- January 20, 2021 Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
The U.S. Office for Civil Rights (OCR) maintains a Resource Page for LGBTQI+ Students which includes the following fact sheets and resources, as well as a number of other resources. This page is added to on an on-going basis.
- October 2021 U.S. Department of Education: Supporting Intersex Students
- June 30, 2021 White House Briefing, FACT SHEET: Biden-Harris Administration Advances Equality for Transgender Americans
- June 30, 2021 White House Toolkit on Transgender Equality
- June 2021 U.S. Department of Education: Supporting Transgender Youth in School
- June 2021 U.S. Department of Justice and Department of Education Fact Sheet: Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families
- May 17, 2021 White House Briefing, FACT SHEET: The Biden-Harris Administration is Advancing LGBTQI+ Human Rights at Home and Across the Globe
Gender-Based Harassment and Bullying
Gender-based harassment is unwelcome conduct based on an individual’s actual or perceived sex, gender identity, or nonconformity with sex stereotypes. Gender-based harassment may include:
- Acts of verbal, nonverbal or physical aggression
- Intimidation or hostility based on sex or sex-stereotyping or failure to conform to perceived sex or sex-stereotypes
Such acts are considered to be gender-based harassment even if they do not involve conduct of a sexual nature because the conduct is sex-based.
Title IX prohibits sexual harassment and gender-based harassment of all students, regardless of the sex of the harasser or the target and regardless of the actual or perceived sexual orientation or gender identity of the harasser or the target.
For more information on gender-based harassment, harassment, and bullying, see:
- Oct 26, 2010 Dear Colleague Letter Harassment and Bullying
- Oct 26, 2010 Dear Colleague Letter Harassment and Bullying Background, Summary, and Fast Facts.pdf
Bullying Prevention and Education
Colorado law also protects students from bullying. Colorado House Bill 11-1254, section 22-32-109 (1)(11)(I) defines bullying as “any written or verbal expression, or physical or electronic act or gesture, or pattern thereof, that is intended to coerce, intimidate, or cause any physical, mental, or emotional harm to any student” and states that “bullying is prohibited against any student for any reason” (page 9). For information on bullying prevention and education, see:
- Colorado Department of Education, Office of Learning Supports, Bullying Prevention and Education
- Colorado Model Bullying Prevention and Education Policy
- Colorado School Safety Resource Center, Bullying and Harassment
- National Center on Safe Supportive Learning Environments: Bullying/Cyberbullying
- Centers for Disease Control Understanding Bullying Fact Sheet