Friday, April 24, 2015

Student Accused of Sexual Assault Sues Columbia

Yesterday, Columbia University student Paul Nungesser sued the institution, alleging that it is liable for harassment that he experienced in the wake of a fellow student's accusations that he sexually assaulted her. The university did not find Nungesser responsible for any assault, and his accuser, Emma Sulkowicz, has been protesting this outcome by carrying a mattress with her around campus, a protest that is doubling as performance art project for credit in her art class.

The protest has apparently made Nungesser's life difficult. He alleges that it has caused him to experience "verbal aggression, intimidation, and hostility" for which he seeks to hold Columbia liable for unspecified money damages. His primary claim is under Title IX, which means that his case will have to satisfy the following elements required for institutional liability for harassment: (1) that the harassment is severe or pervasive; (2) that the harassment is because of sex; that Columbia officials had notice of the harassment; and (4) that they responded with deliberate indifference. I think all four of these elements will be challenging for him to satisfy, based on the allegations in the complaint.  First, though he describes the harassment as "severe" and "pervasive," he does not give very many specific examples beyond a couple of Facebook comments posted by friends of Sulkowicz who are not alleged to be students at Columbia. Verbal harassment must be really pervasive to be actionable, and the court is going to require that he show examples to satisfy this requirement.

Second, there is no allegation that he reported this harassment to Columbia University officials, nor that they responded with deliberative indifference. Finally, he does not explain in the complaint why the harassment targets him because of his male sex, as opposed to because people apparently believed he had gotten away with committing sexual assault. It is possible that harassers would have assaulted a female they perceived to have gotten away with sexual assault or other comparable violence in a similar way. 

Suprisingly, he does not include a defamation claim against Columbia or Sulkowicz, even though what seems to be at the crux of Nungesser's lawsuit is the fact that Sulkowicz's protest is making people believe he committed sexual assault.  Why doesn't he sue her for defamation, and try to get an injunction against the protest?  After all, she would have no special defense arising from the artistic nature of her protest.  If he indeed states falsely that he assaulted her and his reputation is damaged as a result, he should be able to prevail as long as he can prove that her claim is false.  Interestingly, the litigation strategy he has chosen avoids having to do just that.

OCR Issues Guidance on Title IX Coordinators

Today the Department of Education's Office for Civil Rights issued guidance reminding educational institutions of their obligation to designate a Title IX Coordinator.  This has been a requirement since the initial Title IX regulations promulgated in 1975, but far too often we read about institutions lacking in this critical area of compliance.  Lately, though, it seems like the Title IX Coordinator obligation is sinking in, as colleges and universities in particular are trying to catch up with their obligations to address sexual assault on their campuses. As a result, whereas at one time most schools who had a Title IX Coordinator considered it the role of someone in athletics, the position is more likely to be properly regarded as one with campus-wide duties and is often assigned to someone who otherwise works in human resources, student affairs, or increasingly, a stand-alone full-time position.

OCR's guidance consists of a Dear Colleague Letter that lays out various requirements and considerations regarding Title IX Coordinator, such as the requirement that they be independent and not engage in conflicts of interest, that they have the authority and support to carry out measures necessary to ensure the institution's compliance with Title IX, that they be visible and easy to find, and that they be trained. 

The guidance also contains a resource guide that provides an overview of an institution's compliance obligations under Title IX, and points the Title IX Coordinator (and other readers) to additional sources of information on those obligations. 

Wednesday, April 22, 2015

Should Western Kentucky's Women's Swim Team Have Been Suspended?

Last week Western Kentucky University announced the suspension of its swimming and diving program for five year after a Title IX investigation revealed widespread incidents of hazing, harassment, and sexual assault.  The investigation was reportedly prompted by a police report filed by one of the swim team members, alleging numerous examples of criminal and otherwise reprehensible conduct.  For example, the complainant reported that another of his male teammates sexually assaulted a female teammate who was unconscious, while others watched. He also reported that one of his male teammates had once placed in a chokehold for as long as he could stand it, causing him injury.  When the police searched the house where swim team members lived and held parties, they found photographs of teammates who had passed out from drinking, arranged in nude or semi-nude sexual positions and, in some cases, having been written on with racist and homophobic language.

As I told a columnist for the local paper in Louisville, I am glad to see universities taking seriously the problems of hazing and sexual assault. Suspension is a reasonable response to pervasive and intractable climate of hostility, aggression, and assault like the one revealed at WKU. However, one angle on this case that no one seems to be publicly discussing -- and that I myself was slow to realize -- is that all of the examples of misconduct appear to involve male swimmers, yet the university has suspended the entire program, men's and women's alike. This raises Title IX concerns under the principal of equal treatment that is codified in the regulations. Female athletes' participation is impaired -- by virtue of being held accountable for other athletes' misconduct  -- in a way that no male athletes' participation is impaired.

It may have been the case that in the course of responding to a serious problem with necessarily promptness, university officials did not consider the discriminatory effect on female swimmers.  Perhaps in retrospect they can reexamine the decision to suspend the female swimmers and, if warranted, reinstate their athletic opportunities.

Tuesday, April 21, 2015

Court Dismisses Title IX Count Against Pepperdine

In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians.  Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim.  (The court refused to dismiss the plaintiffs' claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.)

The court dismissed the plaintiffs' Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coach's concern that they were dating each other, which is not prohibited under Title IX.  Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine. 

As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans.  So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in one's appearance or mannerisms, although the EEOC has adopted the broader interpretation.  I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX.

Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).

Monday, April 20, 2015

Utica College Selective Deploys Title IX Excuse

The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on   April Fools Day.  This year's issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory remarks toward women," and a "photo depicting a woman with a beard as the school’s most eligible bachelorette."

I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision.  To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiff's ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard.  I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut men's teams.  Title IX does not micromanage institution's decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or don't censor, but don't misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense.  The statute has enough haters already. 

Moreover, it appears that Utica's concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in women's sports.  That's a 17 percentage point disparity and among the most egregious I've seen in present day.  If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more women's teams.

Wednesday, April 15, 2015

Another female coach terminated: University of Delaware

In the wake of similar stories out of Duluth, Iowa, and Tufts, we note that another female coach has been terminated this year, this time by the University of Delaware. 

Softball coach Jaime Wohlbach was reportedly fired abruptly on Monday afternoon, in the middle of her season.  According to Wolhbach,  she was told at the time that she "ran a hostile environment" for her players, which she disputes and points out that she had not received any indication from her supervisor that players had complained or were unhappy.

Considering public comments Wohlbach has since made, it appears that an alternative possible explanation for her termination is that it is the culmination of an ongoing conflict with her supervisor, associate athletic director Joe Shirley, whom Wolhbach accuses of micromanaging her team and giving her an unwarranted poor performance evaluation. Given that Wohlbach apparently reported him to human resources for "bullying," it seems possible that her termination is retaliation for her complaint.  


It remains to be seen whether Wohlbach will take any legal action invoking Title IX. It is certainly possible that the "bullying" she complained of targeted her because she is a woman and/or because she coaches a woman's team.  Additionally, if the university had actually received complaints about the coach's "hostility" towards her players, the fact that its response to those complaints was to immediately terminate the coach could reflect a sexist double standard, if it is the case that Delaware would have permit male coaches with more leeway in that situation, such as an opportunity to address or explain the complaints.

The Title IX angle is speculation on my part.  But since we have seen other examples of similar bias against women coaches, including the very recent examples noted above, it is not far fetched to consider the possibility of sexism underlying this case as well. 

Wednesday, April 08, 2015

Prom season discrimination

I know we do this every year, but this is another post about discrimination against gender non-conforming students. It always happens somewhere in the United States during prom/yearbook season.

The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo.

The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the student's mother "Girls wear dresses and boys wear tuxes, and that's the way it is," came under pressure from the National Center for Lesbian Rights.

So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of today's fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent.

On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.

Monday, April 06, 2015

Court Dismisses Expelled Student's Case Against Vassar

Last week a federal court in New York ruled in favor of Vassar College, granting its motion for summary judgment on discrimination and other claims filed by a male student who had been expelled for sexual assault. The plaintiff, Peter Yu, and the female student who accused him had provided a university disciplinary committee with vastly different accounts of the encounter at the heart of this case; he claims he asked her if she wanted to have sex and she agreed, while she claims that she did not agree and was "helpless" to resist his advances. They also had different interpretations of the messages she sent to him later, in which she apologized for leading him on and offered to "stand up" for him should get in to any trouble over the fact that someone in his dorm called security (because they thought he was "potentially hurting somebody.").  His position is that the messages verify his version of the events, while she claims she sent them in a state of "denial," "shock" and "disbelief."  Based on  this evidence -- along with the statements of witnesses who testified to the female student's intoxicated state and that they were concerned for her when they saw her leave with him -- the committee found Yu responsible and the college expelled him in March of 2013. He sued the university three months later. (We blogged about his complaint at the time.)

Yu's primary claim against Vassar is that the college's decision to expel him violates Title IX.  His argument to this end incorporated two alternative theories that have been accepted by earlier  precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement.  First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome.  To this end, Yu made numerous allegations of procedural flaws.  For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainant's father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law.

Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error.  For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that 'males invariably lose' when charged with sexual misconduct at Vassar."  Instead, Yu argues that only bias could explain why the committee did not read the complainant's post-incident messages as evidence of his innocence.  But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainant's explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant.

Yu also argued that Vassar's policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men.  Vassar's policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex.  Moreover, the court recognized that Vassar's own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women. 

Yu's second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student.  Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled.

As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts.  In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures.  But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing.

Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).

Friday, April 03, 2015

Expulsion for bathroom use

My last blog post a few weeks ago was a hopeful one about transgender students and bathrooms.

This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the men's bathroom and locker room facilities.

We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This week's ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here.

Johnston used men's bathrooms without (according to Inside Higher Ed's article--linked above) any problems. It was, apparently, his use of the men's locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there weren't any. They wanted him to use a unisex bathroom. He continued to use the men's facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior."

The university claims that Johnston could not use the men's bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate.

We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the men's bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyone's privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnston's lawsuit.






Thursday, April 02, 2015

DOJ Challenges Discrimination Against Transgender Professor

The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job.  The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department.  At the time, she presented as a man and went by a traditionally male name.  In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university.

She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred.  When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII."  The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status."  This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.  

The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair.  At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision.  Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. 

While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases.  So a positive outcome in this case could translate to expanded federal protection for transgender students as well.

Monday, March 30, 2015

Court Dismisses Lawsuit Challenging the Clery Act Amendments

Last year we blogged about a lawsuit filed in federal court on behalf of a female student at the University of Virginia that was seeking to nullify the amendments to the Clery Act contained in the reauthorization of the Violence Against Women Act. The plaintiff had reported to her university that she had been the victim of sexual harassment and assault.  After investigating the matter, the university did not find the accused student responsible for the alleged misconduct. The student then filed a complaint with the Departments of Education and HHS, alleging that UVA violated Title IX in the handling of her complaint.  After the VAWA reauthorization, she filed this lawsuit seeking an order from the court that would compel the federal agencies to disregard the newly-amended Clery standards to the investigation of her case. She argued that these standards were weaker than Title IX's and therefore diluted its protection. Some of Clery's weaknesses, she argued, are its failure to codify a preponderance standard or a definition of consent.   

Last week, the federal court in D.C. dismissed the lawsuit based on an "erroneous interpretation" of the Clery Act amendments.  As the court correctly states, Clery and Title IX impose simultaneous, not alternative, requirements. Therefore, and as the Department of Education has since clarified, nothing in the Clery Amendments changes an institution's obligations under Title IX in any way.   The plaintiff apparently, and not unreasonably, wishes that Congress had endorsed the preponderance standard as a matter of statutory law (a stronger and potentially more lasting source of law than the Department of Education's interpretation on this issue) and that it had chosen to define consent.  Yet, Congress's failure to do this isn't actionable in a court of law.  The plaintiff is no worse off under the amended Clery than she was prior to those amendments.  While she may believe that the Clery Act amendments should have been stronger, that is a policy argument more appropriately directed at the political process.

Doe v. U.S. Dep't of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).

Friday, March 20, 2015

Sexual Assault Litigation Update

Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault:
  • A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body.  She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated.  JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted
  • A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student.  He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters.  The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case.  The lawsuit seeks $3 million in damages.  
  • Parents of a fifth-grade student in Grand Rapids, Michigan, have sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately.  The lawsuit alleges that school officials violated the boys' right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him.  
  • A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. 
  • A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million.  We have already blogged about the accuser's suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible.  She has also sued him directly.

Friday, March 13, 2015

Bathroom policies that make sense

It is always nice to Friday blog a positive story.

Pierce College, a community college in the state of Washington, issued a memo to the college community this week about the use of bathrooms by transgender individuals. My cursory Google news search did not reveal any particular incident, though what I suspect has happened is that trans* and gender queer people's use of bathrooms on campus is upsetting some individuals who have turned to the administration for redress.

This was the response from the college's Title IX coordinator (also the VP for human resources):
Recently we have received questions from members of the college community at both Fort Steilacoom and Puyallup about transgender individuals and restroom use. The short answer is that every member of the Pierce College community is free to use whichever restroom aligns with their gender identity. Pierce College is also in the process of identifying gender neutral restrooms on both campuses, which will be available for anyone to use, regardless of gender identity or expression.
 
It is not up to other people to determine whether or not a given person is in the “right” restroom. If an individual chooses to enter that restroom, it is the right restroom for them. (In the rare event that they entered the restroom by mistake, they will certainly exit upon realizing the mistake without any outside help.)

She does go into the long answer which involves state and federal laws and includes some links for additional information, including one about the application of Title IX protections to transgender students. 
 
The response reminded me a little of this photo from the Transcending Gender Project that I have seen around social media in the past few weeks. 

Of course as we have seen in the several cases of high school athletic associations attempting to pass policies governing the participation of trans* athletes, bathrooms and locker rooms cause some people to grow quite agitated. There is a presumption, which I mentioned the other day, that trans* people are predatory and will engage in sexual acts with unwilling cisgender people in bathroom spaces. Thus, people who report a trans* or gender queer person using the "wrong" bathroom may feel they are being preemptive when they call security. The letter to the Pierce College community addressed this as well:
If any person is behaving dangerously or actively harassing others in a restroom or any other Pierce College space, please contact Campus Safety. The mere presence of someone using the restroom does not qualify as a dangerous or harassing activity and should not be cause for alarm or complaint.

The End.

Thursday, March 12, 2015

Ohio State Hockey Coach Resigns Over Harassment Complaints

Ohio State's women's hockey coach has resigned in lieu of being fired for misconduct that included sexual harassment of his players.  The university reportedly commenced investigating Nate Handrahan last November after receiving an anonymous complaint from a teacher or instructor that one of his players had shared in class the fact that he made sexually explicit comments to the team.  In the course of investigating the complaint, the university received verifying testimony of other witnesses, who attested not only to his use of sexual language and innuendo (such as for example telling them in practice to "get horny for the puck") but also his verbally abusive and intimidating style.  (The university's report also concluded that he had engaged in retaliation against his players as well, though the news account I read did not go into details on this.)

Earlier this year, Kris blogged about the dismissal of UNH's women's hockey coach over an incident in which he assaulted a player by pulling her to the bench by her shirt, causing her to fall.  And I can't help but ask about this case the same question Kris asked then: would this have happened in men's sports?  Notwithstanding prominent counterexamples, such as the dismissal of Rutgers men's basketball coach for abusive conduct towards his players, there is still a lot of tolerance for, and even expectation of, an aggressive style among coaches of men's teams.  At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of women's teams -- men and women alike -- in something of a double bind as they receive mixed messages from society (and possibly from the culture of their athletic department): be aggressive, to prove yourself as a coach.  But don't be aggressive towards female players, because women are different.  The fact of this double-bind is not only dangerous for coaches, but for players as well.  Not only because coaches may wrongly infer that abusive conduct is appropriate, but also because when the coach is dismissed for such misconduct, that in itself further diminishes the athletes' experience by depriving them of continuity in coaching.

By no means do I point out this double standard to condone the actions of Coach Handrahan here.  Nor do I suggest that Ohio State in particular is practicing a double standard.  (In fact, Ohio State's similar response to the band director situation last fall suggests that Ohio State is consistent when it comes to addressing sexual harassment in its programs.)  But in a larger sense, this case helps illustrate the importance of being consistent across men's and women's programs when it comes to tolerating harassment, abuse, and bullying by coaches. Aggression that crosses the line into that territory should never be mistaken for a coach's job requirement, regardless of the sex of the athletes he or she is coaching.

Wednesday, March 11, 2015

OTL covers young transgender athletes

Shows like Outside the Lines give me a little more faith in ESPN. This week's episode (a piece of which can be found here) profiled two transgender athletes and discussed more broadly the issue of trans athletes in youth and high school sports.

The episode focused on two transgender students. The first, Leo, is a trans boy in Maine who recently came out and received permission to swim on the boys' team at his high school. Maine is one of the 33 states that has a policy addressing the participation of transgender athletes in high school sports. They passed their policy in 2013 and Leo took his situation to the high school athletic association which approved his participation on the boys' team last fall. Leo's experience, based on his own telling and interviews with his teammates and coach, was positive. What was striking about his interview was the reminder to all of us that this issue is about more than just the right to participate (not to diminish the very important civil rights component here). It is about what sports can provide participants:
"I think I can go through a lot more more confidently than if I hadn't [had this experience]."

Also important to note is that Leo's teammates and coach are very supportive of his participation. The three teammates OTL interviewed called him brave.

The other story, of Shay, is a sharp contrast to Leo's because she lives in Montana which has been unable to successfully pass a policy regarding transgender participation. I wrote about the policy proposal in January. That policy was withdrawn, according to OTL, because the Montana High School Association did not feel it had enough votes (it needed a 2/3 majority among its 120 members) to pass. This has left Shay, who competed in both track and basketball as a middle schooler, unable to play high school sports. Shay's story is particularly sad because she has struggled throughout her transition and sports offered her an outlet.

OTL interviewed members of conservative Christian organizations that opposed the policy. (Not all of these interviews made it to the above clip.) So-called privacy concerns arose again in this conversation. This argument continues to privilege the the privacy of cisgender children over that of transgender children. This was especially interesting in Shay's case because she was not out when competing in middle school and would change in bathroom stalls to protect her identity--and I would argue, her personal safety.

This leads to another issue that opponents have: safety in locker rooms. This is an argument similar to one that has been made against gays and lesbians, which assumes an innate predatory instinct (recall the campaign against gay Boy Scouts). Safety in a locker room is the result of the culture of that locker room, regardless of one's sexuality, gender identity, hormones, chromosomes, or genitals. The safety of gay and transgender people is far less secure than their heterosexual and cisgender peers.

Another conservative safety argument is that mixed gender locker rooms--their term, which  negates the gender identity of the transgender children--will result in undesirable shenanigans of a sexual nature. Let's not forget the many, many, many incidents of hazing and bullying in locker rooms that are perpetuated among cisgender people of the same sex and involve acts of genital touching and penetration. 

These are all straw man arguments, which one can easily see through when the opponents refer to transgender children using their biological identity and encourage them to be comfortable being themselves and not hiding who they are; what they mean is not hiding their biological sex. The implication is that these children are being both deceptive and unnatural--that is the foundation of their opposition, not safety concerns.

The rationale behind why youth and interscholastic sports should exist in our culture includes the belief that they are character-building, and teach leadership, cooperation, and sportspersonship. And though we can poke many holes in this Great Sports Myth, there are still many children who benefit a great deal from sports participation at a young age. To deny these experiences to any child is an injustice and to deny them by blaming and labeling and stereotyping them is unconscionable.