“Nobody is under any obligation to be kind to me in school,” argued Montana State Representative Mike Hopkins in February 2023.
Hopkins was knee-deep in a floor debate about then-Montana House Bill 361, which decrees that it is “not discriminatory behavior” for a student to refer to another student “by the student’s sex” or to refer to them by their dead name, which is to refer to a transgender or non-binary person by their birth name or a name that they choose to dissociate with. At the end of April, the bill became law in Montana — and became an unprecedented statute in the United States.
Representative Hopkins pressed the issue, saying: “I am under no obligation to be respectful to any of you,” and “Schools cannot force us to relate to one another.” Several students testified at a hearing on the bill, describing the ways they were bullied over their transgender status.
Saying that this new law will enable bullying is wrong. It will enable illegal harassment: conduct prohibited by Title IX of the Education Amendments Act.
Schools often mischaracterize illegal discrimination and harassment as bullying. Bullying and harassment are conflated or used interchangeably by school personnel and the general public. To deem a behavior bullying when it is actually an illegal form of harassment lets school officials off the hook; it actually serves to mask civil rights violations and can protect districts from civil rights lawsuits and Title IX claims.
This isn’t necessarily malicious or even intentional. Many school employees do not understand their duties under Title IX. But that doesn’t mean it isn’t harmful. Characterizing sexual harassment as bullying “degenders” it and sneaks it under their obligations to deal with sex-based discrimination and/or harassment under Title IX.
Title IX provides for civil rights protections in schools based on sex and gender and calls for schools to dismantle hostile environment sexual harassment. In 2021, the U.S. Department of Education confirmed that Title IX protects transgender students in a press release.
The Department of Education must rely on Title IX to protect students by default; no federal laws address bullying. In some instances, bullying overlaps with illegal harassment and that’s the reality in Montana.
The state of Montana prohibits bullying in general but doesn’t protect any particular group. School districts with anti-bullying policies — even ones that specifically apply to bullying based on sexual orientation or gender identity — are not done with their work protecting students. They are still responsible for investigating, ending, preventing harassment, and remedying the previous harm.
There’s no free speech defense to the behavior that Representative Hopkins wants to greenlight; schools can restrict speech that threatens to substantially interfere with the school environment. In fact, school authorities are expected to prevent speech intended to intimidate or name call. According to the National Women’s Law Center (NWLC), “There is no constitutional right to be a bully.”
And being kind is the best way to comply with Title IX as well as impart other benefits, including: happier students, increased feelings of acceptance and self-esteem, improvements in physical and mental health, improvements in academic learning, and a decrease in bullying.
This isn’t limited to Montana. According to the American Civil Liberties Union (ACLU), a record number of bills are being proposed that threaten the rights of LGBTQ+ citizens. LGBTQ+ youth are being especially targeted. Much of this proposed and enacted anti-LGBTQ+ legislation focuses on the banning of books, denying students access to sports and affirming healthcare, and targeting families who affirm LGBTQ+ status.
Unsurprisingly, many schools are violating the Title IX rights of their students. Individual public schools may or may not receive federal funds, but they are all subject to Title IX because all states accept the money. According to the 2021 GLSEN Climate Study, most LGBTQ+ students reported experiencing a hostile school environment even without these laws. Over 81% of LGBTQ+ reported feeling unsafe in school because of real or perceived identity characteristics. More than 50% of transgender and nonbinary students have considered suicide, according to the Trevor Project.
Calling it bullying isn’t necessarily inaccurate. There’s plenty of reason to prevent bullying and call it as such even if there weren’t a legal mandate through Title IX to do so.
Research shows that students’ negative school experiences influence their academic growth, their social-emotional growth, and their physical and mental health by causing anxiety, depression, self-harm, substance use; academic harms, such as: heightened absenteeism, decreased academic connection and achievement as well as and physical harm, such as: sleep disorders, increased stress levels, and physical ailments such as headaches and stomach aches.
Representative Hopkins was wrong: federal law obligates all of us to be kind to others in institutions governed by Title IX. His advice is unlawful, illegal, and, quite frankly, should be criminal.