Title IX Is No Excuse to Reject Transgender Applicants to Women's Colleges

Smith College, a women's college in Northampton, Massachusetts, has made news in recent weeks (see, e.g., here, here, and here) for its widely publicized decision to refuse to consider the application of a transgender applicant.  According to the rejection letter, which the prospective student posted online, the College cited the fact that her federal financial aid (FAFSA) paperwork indicated her sex as male.  Throughout the rest of the application, however, the applicant identified as female, which reflects her gender identity. The applicant even reports having spoken with admissions "extensively" about her application, suggesting that Smith was not genuinely confused about the applicant's sex, but rather, that they were searching for a technical reason to refuse her application.  On the other hand, we don't know if Smith would have reconsidered if the applicant submitted a revised FAFSA.  So I'm not willing to suggest at this point that the College's FAFSA rationale was actually pretext for exclusion based on the applicant's transgender status.

I am, however, concerned about the role Title IX has played in public debate generally about single-sex colleges and transgender students.  Here in Northampton, our local paper ran a story this week in which the President of Mount Holyoke College, a women's college in neighboring Amherst, said that admitting someone who is not legally female would remove women's colleges from the Title IX exception for single sex colleges:  “We’re constrained by the law,” Pasquerella said. “If someone is not legally female, we can’t admit them and keep our federal funding.”

This is not correct, for two reason.  First, Title IX does not contain an exception for single-sex colleges.  Rather, the reason why Smith and Mount Holyoke are allowed to exclude men from admissions is because the statute by its terms does not apply to private college's undergraduate admissions.  See 20 U.S.C. 1681(a)(1) ("In regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education").   What this means is that, while Title IX does not require Smith to consider the application of someone Smith does not consider female, nor is the statute violated if Smith should do exactly that.  I think that the reason for the confusion on this point is that the statute also contains an exception for "public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex." 20 U.S.C. 1681(a)(5).  Back when there were public single-sex colleges, those institutions had to be careful to be consistent in the exclusion of the opposite sex, otherwise they risked falling outside the exception.  But this exception only applies to public institutions that are single-sex, not private schools like Smith and Mount Holyoke. Title IX does not need to provide an exception for private single-sex schools because, as I said before, all of private undergraduate admissions are outside the scope of the statute.  I think that the private single-sex schools see that language about "traditionally and continually" admitting only students of one sex, and misperceive its application as to them. 

Another reason why it's wrong to suggest that Title IX prevents Smith or Mount Holyoke from considering transgender students from admissions is that the statute does not incorporate a legal definition of sex.  Therefore, even if the statute did require Smith to "traditionally and continually" admit women, the law does not prevent Smith from considering transgender women to be women.  In fact, the law in other, analogous contexts, may be bending toward a definition of sex that would require such inclusion. Last year, for example, the federal agency that investigates employment discrimination adopted the broadest possible definition of "sex" for purpose of applying the law's prohibition of discrimination on the basis thereof.  This ruling signals increasing acceptance for the view that sex is not simply a matter of what is says on your birth certificate, your drivers license...or, seemingly, your FAFSA. 

I've argued elsewhere that women's colleges should be inclusive of transgender students -- both those who have transitioned from male to female prior to applying, as well as those who transition from female to male after matriculating.  Because Title IX does not apply to private undergraduate admissions, I can't argue that they must do so under the law. But neither is Title IX an obstacle to admitting transgender students. Whether mistaken or pretextual, the view that the law forbids single-sex schools from admitting transgender students is wrong. Title IX should not be part of the discussion.  

ACLU Challenges Single-Sex Classes in Wisconsin

The Wisconsin chapter of the ACLU has filed a complaint with the U.S. Department of Education, challenging single-sex classes at one middle school and two elementary schools. Riverview Middle School in Barron separated fifth-grade girls and boys in language arts and math classes in the past and plans to do so again next year.  The two elementary schools, both in Beloit, have been offering single sex classes in multiple subjects.  The ACLU alleges that all three single-sex programs violate Title IX because the schools lack the adequate justification required by law -- instead relying on discredited science and sex stereotypes.

Earlier this year, the ACLU convinced a high school in La Crosse, Wisconsin, to voluntarily suspend its girls' English and math classes, that were also justified solely by pseudoscientific generalizations about the ways girls learn.   

The Wisconsin ACLU's efforts are consistent with the ACLU's nationwide campaign to "teach kids not stereotypes" -- an effort that has generated similar challenges to single sex programs around the country.   

Sexual Harassment Roundup

Here is a roundup of sexual harassment decisions handed down this winter:

A federal district court in New York dismissed Title IX claims against the New York City Department of Education stemming from a single incident of peer harassment in which a male student pressed his body against a female student and touched her breasts.  The court determined that school officials had no notice of the offending student posed a risk of sexual assault, and that the school's response -- suspending him for one year -- was reasonable and not deliberate indifference.  Carabello v. New York City Dep't of Educ. 2013 WL 828470 (Mar. 6, 2013).

Similarly, a district court in Washington dismissed Title IX claims against a district in a case involving a male teacher's inappropriate touching (giving backrubs) and comments on appearance of an eighth grade female student.  The court reasoned that the school's response did not amount to deliberate indifference, where the response consisted of staff training, and retraining of the offending teacher, as well as offers to reassign the teacher which the student's parents rejected, choosing to withdraw the student instead.  The plaintiffs can, however, proceed individually against the teacher for violations of the student's constitutional rights to be free of sexual harassment. S.T. v. Yakima Sch. Dist. No. 7, 2013 WL 807197 (E.D. Wash. Mar. 5, 2013).

A female student-athlete who was sexually assaulted by a male student in her dormitory could not recover from her university under Title IX, since school officials did not have notice that the offending student posed a risk of sexual assault and that the student was subjected to further sexual harassment or violence after reporting the offense.  Moore v. Murray State University,  2013 WL 960320 (W.D. Ky. Mar. 12, 2013).

A student harassed by her peers on the basis of religion could not recover under Title IX.   Shively v. Green Local School District, 2013 WL 774643 (N.D. Ohio Feb. 28, 2013).

A student harassed by peers could not bring bring Title IX claims against individual school officials, nor could she sue them individually under 42 U.S.C. 1983's right of action for violations of Title IX.  Doe v. Town of Stoughton, 2013 WL 227568 (D. Mass. Jan. 22, 2013).

A male middle school student routinely bullied from sixth through eighth grades could proceed with Title IX claims against the school district, having alleged sufficient facts to demonstrate that the harassment was because of sex because he was subject to unwelcome sexual advances and sexually lewd comments, and that the school officials did not intercede to protect the harassment they knew was going on. P.W. v. Fairport Cent. Sch. Dist., 2013 WL 690525 (W.D.N.Y. Feb. 25, 2013). 

Complaint Alleged Against Clark College

A Title IX complaint was filed against Clark College in Vancouver, WA, alleging that "campus softball facilities, equipment and supplies, and publicity are not being offered to women equal and comparable to the superior accommodations provided male baseball programs at its Clark College campus."  The complaint provides a long list of ways in which the softball team receives inferior treatment, including the dugout, equipment storage, backstops, toilets, spectator seating, scoreboards, drinking water, foul poles, field maintenance, drainage, fences, concessions, and publicity.  The Department of Education will now determine whether to investigate and how to resolve the matter. 

Clark College has had Title IX problems before.  In 2010, it paid half a million dollars to a former women's basketball coach after he prevailed in his case that he was fired in retaliation for advocating gender equity for his team.

Appellate Court Reinstate Female Referee's Sex Discrimination Case

Tamika Covington is a high school basketball referee in New Jersey and Pennsylvania.  For several years, she has been litigating for the right to officiate boys' games as well as girls' games.  She has sued the International Association of Approved Basketball Officials ("IAABO"), over its policy of assigning female officials to officiate at girls' regular season high school basketball games, as well as the New Jersey State Interscholastic Athletic Association (“NJSIAA”). Among other defendants, Covington also sued the Hamilton Township School District, one of the school districts in which she officiates.

Yesterday, the U.S. Court of Appeals for the Third Circuit ruled in Covington's favor that she could continue to litigate against these defendants, overruling an earlier decision of a lower court that had dismissed Covington's case.  The favorable ruling, however, was limited to Covington's claims under Title VII, the federal law prohibiting discrimination in employment, and did not extend to her Title IX claim.  At issue for purposes of the Title VII claims was whether Covington had an employment relationship with these defendants, and the court of appeals agreed that she did. Hamilton School District has influence over the officials' work assignments, it chooses the time, date, and location of the games, and pays the official, making it an employer for purposes of the regular season.  For similar reasons, the NJSIAA is considered an employer for purposes of the post season.  And the IAABO is potentially liable under Title VII because even though it does not directly employee officials, it operates like an employment agency, facilitating officials' work assignments. Now that the appellate court has concluded that these defendants are governed by Title VII, Covington will be able to argue that policy restricting her assignments to boys' games violates the law -- an argument on which she seems likely to prevail. 


While this decision is overall favorable for Covington, there is one aspect in which it bothers me.  The appellate court ruled in a footnote that Covington could not simultaneously bring a Title IX claim against the Hamilton School District because she did not allege "an official policy of discrimination at Hamilton and does not allege that an individual with authority to address the discrimination had actual knowledge of the discrimination."  But the court does not acknowledge that Gebser v. Lago Vista Independent School District, the case cited as authority of these requirements, was a sexual harassment case, and sexual harassment is treated differently than direct discrimination when it comes to imputing liability on the school district.  It makes sense to require notice in harassment cases because harassment would otherwise be concealed.  But plaintiffs should not have to allege notice in cases involving open and obvious, direct discrimination.  This point has been argued (successfully) in cases involving disparities in men's and women's athletics programs, and the notice requirement is equally irrelevant in hiring/employment cases like this one.

Since Covington can proceed alternatively under Title VII, this footnote isn't going to really get in her way.  But there it sits, a potential source of confusion in future cases, and that's too bad. 

Decision: Covington v. International Association of Approved Basketball Officials, 2013 WL 979067 (3d Cir. Mar. 14, 2013).

Towson goes through with athletic team cuts

Last fall Towson University announced plans to cut men's soccer and baseball. This past week they followed through with these plans after a process that--from all reports--was mired in confusion and perhaps deception.
Athletic Director Mike Waddell drew criticism in the fall when he said the cuts were due to Title IX: the university needed to achieve parity in the athletic opportunities it provides students. At that time, Erin (among others) questioned this rationale when it came out that Waddell didn't do the numbers right. That, in fact, Towson had already achieved proportionality.
But this week the university president made a formal announcement to the student-athletes involved--a process that also has drawn intense criticism from players, coaches, parents, and community members. And though the reality of the athletic department's financial situation has been brought to light alongside the lack of a Title IX problem (at least in providing opportunities), the president's statement include an immediate mention of Title IX:
For the past several months our campus has been dealing with a proposed recommendation from our athletics leadership to reconfigure the intercollegiate athletics program to address three issues facing the university: long-term financial stability and affordability; compliance with Federal Title IX requirements; and the ability to be competitive in NCAA Division I athletics.

It is possible the her statement about Title IX--sandwiched in the middle of the other less nebulous reasons--is true. She could be speaking of providing equitable treatment to its women's teams, which also is connected to financial issues. But the number-shifting the cuts have caused are not Title IX related. The university is actually reinstating its men's tennis team.
And many of those involved in this situation know that Title IX was not the motivator behind this decision. Several parents of Towson baseball players, including one who works for the Department of Education, noted that all the information about the department's financials and Title IX data is available to the public and does not support the Title IX claim but rather reflects some fiscal mismanagement or shifting of priorities.
We shall see what the next big project out of Towson athletics is; it should be an indicator of how it intends to remain "competitive in NCAA Division I athletics."

NCAA Releases Comprehensive Best Practices for Inclusion of LGBTQ Athletes and Staff

As someone who studies discrimination in athletics from a legal perspective, I am often confronted by the limits of law to solve the problem.  Title IX is forty years old, and examples of sex discrimination persist.  States, cities, and institutions have law and policy protecting against discrimination on the basis of sexual orientation and gender identity, but many athletes and coaches still experience pressure to stay in the closet. The explanation is frustrating in its complexity -- the problem is not law, but culture.  All the law and policy on the books can't change the climate of a workplace, classroom, locker room, or other contexts in which a climate of hostility or fear suppresses individuals' abilities to freely be themselves.  How, then, can you change the culture? 

Enter Champions of Respect, the 82-page report (available here) released by the NCAA last week.  Here is a guidebook for changing the culture.  Authors Pat Griffin and Hudson Taylor have provided a thorough and comprehensive set of best practices to support inclusion, fairness, and respect for LGBTQ athletes and staff.  What makes this report particularly remarkable is its ability to move past broad aspirational statements about the importance of inclusion and respect, into the highly specific, day-to-day practices that actually cultivate a climate in which everyone feels safe, supported and respected.  For example, the report has advice for addressing intra-team dating, conveying neutrality in media and recruiting materials, responding when a student-athlete comes out, and dealing with questions from parents of recruits. The report talks about how coaches and administrators should frame and bring up discussions about team and department policies and expectations around such things as using inclusive language. It suggests, and explains how, an athletic department can assess its own climate and address its findings, and well as partner with and avail itself of other campus organizations and resources that support LGBTQ students. It provides advice to coaches considering whether or not to come out to their department and to their teams. The report provides useful and effective strategies for simultaneously supporting LGBTQ individuals as well as those with religious viewpoints that are not personally supportive of homosexuality.  It addresses and advises sensitivity around issues at the intersection of LGBTQ identity and race and class. In this report, the "T" in LGBT is not just along for the ride, as the authors provide specific recommendations relating from everything to avoiding assumptions about individuals' gender conformity, to developing policies of transgender inclusion, to using appropriate and respectful language when referring to the player by name and pronoun.  Of particular interest to me, the report even contains a section on legal resources, including a description of how Title IX has been used to challenge discrimination and harassment against LGBTQ students, and a list of various state and local laws that provide additional leverage to the cause of creating inclusive climates.

In sum, this resource, with its clear solutions for addressing a complex problem, and bearing the imprimatur of the NCAA, has real potential to create actual and meaningful change for athletes, teams, departments, institutions, conferences, and the culture of sport more generally. I am excited for this possibility.

Cross-posted at LGBT Issues in Sport Blog.

Court Denies Quinnipiac's Motion to Lift Injunction

Over two years ago, a federal district court in Connecticut concluded that Quinnipiac University's decision to cut its women's volleyball team violated Title IX by leaving too few opportunities for women in its student body.  As a remedy, the court issued an injunction requiring Quinnipiac to retain the team until it could show that it could cut the team in a manner that complied with Title IX.  Yesterday, that same court ruled that Quinnipiac had not yet demonstrated such compliance, and denied the university's motion to lift the injunction.

Quinnipiac had asked the court to evaluate its compliance in light of several changes to its athletics program since the 2010 case.  The university added a women's golf team and a women's rugby team.  It also continued to support its fledgling acrobatics and tumbling ("acro") team, which the court had earlier determined should not be counted, since the sport was too new to provide athletic opportunities comparable to those afforded by other varsity sports. Finally, Quinnipiac instituted a policy prohibiting coaches from requiring student athletes to join additional teams.  This change addressed the court's finding that indoor and outdoor track opportunities should not count separately for certain cross-country athletes who were forced to practice with those teams as "simply an alternative form of off season training" but who did not compete with those teams due to injury or red-shirt status. 

The court easily concluded that the opportunities Quinnipiac added in women's golf, an NCAA recognized sport, should court towards its proportionality qualification.  However, it determined that acro and rugby, which both lack NCAA recognition at this point, should not count:

True, recognition by the NCAA is not, in itself, a requirement of Title IX. But where, as here, a school chooses to sponsor an athletics program at the highest level of competition (NCAA Division I), and offers all of its male athletes the opportunity to participate in NCAA-championship sports, the lack of NCAA recognition for a single women’s sport within that program raises a significant gender equity issue if the school hopes to count that unrecognized sport toward compliance with Title IX. So long as Quinnipiac chooses to hold itself out as a Division I institution, providing a full slate of NCAA-recognized sports for men, equity demands that it do the same for women.

Acro, the court pointed out, hasn't even made it onto the NCAA's list of emerging sports for women, the usual pathway toward becoming a championship sport.  And the court seemed skeptical of this recognition occurring in the near future, in light of the competing proposal from USA Cheer for a different version of competitive cheer called STUNT.  Only a handful of universities sponsor acro teams, which limits the opportunities for competition and denies participants the opportunity for a progressive play-off, which is a hallmark characteristic of varsity programs.

Rugby, on the other hand, is recognized as an emerging sport for women by the NCAA.  That status usually means that the sport will have an NCAA championship if a sufficient number of schools add teams within a ten year period. Rugby became an emerging sport in 2002, and has been added by only five universities (including Quinnipiac) within that time.  The court's concern, therefore, is that rugby's status on the emerging sports list is on borrowed time.  Quinnipiac's rugby team has limited opportunities for varsity-level competition, and as a result played most of its competitive schedule against other club-level teams.  It also had no opportunity for post-season competition.

Based on the court's decision not to count acro and rugby (as well as its decision not to count three injured cross-country runners who quit the indoor track team part-way through the season, but prior to any competition), the court removed 67 athletic opportunities from Quinnipiac's proffered tally, bringing the total number of athletic opportunities for women down to 254. There are 168 athletic opportunities for men, so the opportunities for women amount to 60.2%. By comparison, Quinnipiac's student body is 62.4% female, so Quinnipiac's disparity is 2.2%.  As tiny as this is expressed as a percent, 2.2 percent corresponds to an additional 25 athletic opportunities that would have to be added in order to hit 62.4. Since that is more than enough to sustain a new varsity team, Quinnipiac's proportionality is not just not close enough -- and would be even farther off if, without the injunction, Quinnipiac went ahead with plans to reduce women's opportunities by an additional 14 -- the number of participants in women's volleyball.

For these reasons, the court denied Quinnipiac's motion to lift the injunction.  Acknowledging the university's progress, the court nevertheless expressed some skepticism of the university's choices:  "Rather than simply recommit to women’s volleyball or bring other NCAA-championship sports to campus, the University doubled down on its plan to eliminate volleyball, and staked its compliance with Title IX on an as-yet unrecognized sport as well as an emerging sport in imminent danger of losing that recognition."  In sum, "by relying today on sports that do not yet provide genuine varsity participation opportunities, Quinnipiac has taken a prong-two approach to solving a prong-one problem."