ACLU Presses Florida Technical College to Let Transgender Student Use Women's Bathroom

The ACLU has gone to bat for a transgender woman nursing student at the Pinellas (Florida) Technical Education Center who has been denied access to the women's bathroom, by issuing a letter demanding that they restore her right to access the same facilities as other female students.  The ACLU's client, Alex Wilson, identifies and presents as female, and is listed as female on her drivers license and Social Security card.  Additionally, she had undergone hormone therapy for four years.  She had up until this summer used the women's bathrooms at PTEC without incident, but was barred access by school officials after they discovered that she is transgender.  Since then, Wilson has been offered various bathroom alternatives, such as single stall toilet the "storage area" of a separate building, or the men's faculty restroom for which she would need to ask for a key, but none are as convenient or accessible as the women's room would be. Nor do those alternatives afford the same degree of dignity and respect for her female identity.

The ACLU's letter explains that the failure to treat transgender women in a similar manner to non-transgender women is a form of sex discrimination, which is prohibited by Title IX.  The letter cites legal authority from the employment context, including a 2012 decision by the federal Equal Employment Opportunity Commission recognizing that a transgender gender identity could not be the basis for singling people out for different treatment.  In addition to demanding Wilson's access to gender-specific aspects of the nursing program, including the women's bathroom, the ACLU letter encourages PTEC to adopt GLSEN's model policy for inclusion.

The letter does not include an express threat of litigation.  But that would be the likely outcome in the event that PTEC failed to honor the ACLU's request on behalf of Wilson.

Massachusetts School District Enters Voluntary Resolution Agreement

Framingham (Massachusetts) Public Schools has reportedly entered into a voluntary resolution agreement with the Office for Civil Rights, obligating itself to “promptly and equitably” address complaints of sexual harassment and sexual assault in the future, and to strengthen its policies and staff training around those issues.  As we have earlier noted on the blog, Framingham schools were the subject of a Title IX complaint and subsequent federal investigation over complaints that school officials took it easy on a male student-athlete accused of sexually assaulting two female students. 

Under the agreement, the school district has until October 1 to add the name and contact information for the district's Title IX Coordinator to its website and student and employee handbooks, to instruct staff and faculty to report incidents of sexual harassment that come to their attention, and to communicate to students and parents the school's policy defining, prohibiting, and outlining the consequences for sexual harassment.  It must also establish a memorandum of understanding with the local police that clarifies the school district's independent obligation to address matters of sexual assault involving students, and by June, establish a plan to track and handle complaints of sexual harassment and assault. 

California Passes Transgender Rights Law for Students

On Tuesday, California Governor Jerry Brown signed into law A.B. 1266, the School Success and Opportunity Act, which requires public schools in that state to respect a student's gender identity for purposes of all activities, including sports participation, and facilities like restrooms and locker rooms.  California is the first state to pass such a law, though Massachusetts, Colorado, and Maine have regulatory policies that require schools to allow students to participate in single-sex programs or use single-sex spaces according to their gender identity, regardless of their sex assigned at birth.

California's law provides important protection to transgender students, who may otherwise be treated differently from other students with the same gender identity, simply because their gender identity is at odds with their birth sex. Arguably, such discrimination is a subset of sex discrimination that is prohibited by Title IX. A recent settlement negotiated by the Department of Education's Office for Civil Rights suggests that the government may be interpreting Title IX to require schools to regard students in the manner of their gender identities would help clarify this obligation across the states.  But until the Department of Education or the courts clarify that Title IX applies to transgender students who want to be treated just like other members of their affirmed sex, state-level protection like California's will provide the strongest, clearest mandate for the full inclusion of transgender students.

Nine for IX, Part III: The Biographies

The middle of the ESPN's Nine for IX series is comprised of biographies of individual athletes. In this post I discuss films 4 and 5 which feature two very different athletes: former collegiate and professional basketball player Sheryl Swoopes; and freediver Audrey Mestre. The former is the more well-known, but the story--which I watched twice--of the latter, whom I had never heard of, left me with a feeling of discord/agitation.
Regarding the former, though, Swoopes left me a feeling of "eh." Choosing Swoopes as a sole feature for one of the films in the series might not have been the best idea given the rather lackluster film that emerged. I would rather have seen a film about the initial start of the WNBA and its central figures--both players and administrators, which was the most interesting part of Swoopes, in my opinion.  Though she was, at least briefly, the female Michael Jordan (in part because of her deal with Nike that included her own shoe!), even the documentary pointed out that she was not the sole face of the then brand new WNBA. And, as was proven when she was out on maternity leave during the first season of the league, she was not unequivocally the best player in the league.
There were a lot of potentially interesting moments in the documentary, but--as has been the case with the films in this series--they remain unexplored. For example, the fact that Swoopes went broke. Athletes mismanaging their earnings is an under-discussed issue. Is it a personality issue? A cultural issue (i.e., is there something about sports and the potential for high financial rewards that leads to over-spending)? I appreciated the more in-depth look at her role as a mother; something that went beyond just posing pregnant for the now-defunct Sports Illustrated for Women. I very much disliked the white, male sports writer who continually disparaged Swoopes during the film referring to her as a diva. Not sure why the director and producers felt his comments were essential to the film. I appreciated the lack of sensationalism around her sexuality. But in the end, Swoopes herself didn't come off as an especially interesting or poignant character, and though she just got a job coaching collegiate basketball and is engaged to be married, she came off as kind of a sad figure who has not dealt well with her post-playing life.
More than sad--devastating really--was the story of French freediver Audrey Mestre who was featured in No Limits. I very much appreciated the the executive producers of Nine for IX chose a more non-traditional sport. But I question the place of this film, this story, in the series. No Limits is about the death of Mestre during her attempt at a record-breaking free dive (a sled-assisted descent into deep waters done without air tanks). Mestre died trying to break the record of another female freedriver, Tanya Streeter, who was interviewed for the film, when the air bag that was supposed to whip her back to the surface did not inflate (empty canister). Though I had not heard of Mestre's story, it was already the focus of considerable media attention, including a feature story in Sports Illustrated, a book by one of her husband's former business partners, and another documentary about freediving. The story is really about Mestre's husband, Pipin Ferreras, who is seemingly responsible for her death as he was in charge of all the safety measures, including making sure that the canister is filled--and their relationship.
There was minimal questioning of the involved parties after Mestre's death and no investigation because, in the Dominican Republic where the dive was staged, an investigation only occurs when a member of the immediate family requests one. Still Ferreras has been subject to scrutiny within the freediving community and the sports world. Some accuse him of outright murder, some of manslaughter due to negligence but nearly everyone agrees he is, at best, a narcissist who may have had troubles with the fact that his wife was becoming a more successful freediver than he was (he had mostly stopped diving because he kept passing out).
The evidence is disturbing. The whole film was disturbing (which we were warned about in the opening credits as the directors showed scenes of the dive when Mestre was pulled from the water unconscious). I was left wondering what the point of this film was. It was not a beautiful tribute. It was not an exploration of a little-known sport. It seemed to merely reiterate the Sports Illustrated story while adding a few more characters to the story. It felt somewhat sensationalistic and I felt like a voyeur watching it.
I think this is part because, again, issues were raised but left unexplored. Let's talk about domestic abuse, which could have been part of this relationship--especially mental abuse. Let's talk about unhealthy male coach-female athlete relationships which still do not receive enough attention. In so many ways this story mirrors that of other female athletes (who fortunately have not died) who have been trained by abusive, narcissistic male coaches who continue to go unpunished.
The series keeps stopping just short of doing something; of getting people talking about real issues. In the other films where this has occurred I find it more of an annoyance and a valid critique of the individual film. In the case of No Limits, I think this failing has moral implications that the directors and the series producers have not considered. They used graphic footage of a woman dying, used the voices of others to suggest that her husband is responsible for her death, and then cut to credits.

Settlement in Indiana bullying case

The story and case of Darnell "Dynasty" Young was one that we have not covered. Young was expelled for bringing a stun gun to school as a form of protection against students who were harassing him because of his gender expression and sexual orientation. Young, now 18, filed a lawsuit in August 2012 against the school district alleging that it did not do enough to protect him against the harassment. Young was harassed because he sometimes chose to wear accessories and clothing that were deemed more feminine (but within the school's dress code). School officials to whom Young reported the harassment told him he was bringing it on himself through his sartorial choices and that he should try to be less flamboyant. The settlement, announced in early July and subject to a judge's approval, includes $65,000 to Young as well as the erasure of Young's expulsion from all his records. Young is starting college this fall and said the money will go towards starting an anti-bullying magazine. He also plans on speaking about bullying in various Indiana schools and would like to start an anti-bullying campaign when he finishes college.

Another Male Student Files Title IX Case Over Sexual Assault Grievance Proceeding

After blogging about a similar case against St. Joseph's University, we've learned of another male student, accused of rape, who has filed a Title IX case against his university to challenge the grievance proceeding that lead to his expulsion. Peter Yu's complaint against Vassar College describes a consensual sexual encounter that later resulted in allegations of rape against him. He argues that the grievance proceeding used to find him guilty was procedurally flawed by the denial the effective assistance of any advisor, the opportunity to cross-examine his accuser, and the opportunity to call other witnesses.  He also argues that the panel that conducted his hearing was biased against him, in that it was made up entirely of faculty members and did not include a student, and that those faculty members were all colleagues of the accuser's father, a Vassar professor.

Inside Higher Ed is covering these cases, and reporter Allie Grasgreen asked me to speculate on how plaintiffs like Yu and Harris might prevail under Title IX.  I said that I thought it would be difficult for either one to demonstrate that the university was discriminating against them because of sex, as the statute requires.  Neither one is likely to have access to evidence amounting to a smoking gun, like a university official admitting to rigging the process out of disdain for men. Nor is likely they could create an inference of such intent by, for example, arguing that male students accused of rape are treated differently from female students accused of rape (because there are not likely many examples of the latter category).

Title IX plaintiffs may alternatively use the disparate impact framework, rather than having to prove that university officials were biased against men.  A disparate impact claim requires the plaintiff to show that the university's otherwise-neutral policy or practice adversely affects men in some statistically significant way. This seems to be the route Yu's lawyers are pursuing, given their arguments that "Vassar’s guidelines and regulations are set up to disproportionately affect the male student population of the Vassar College community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct" and that "male respondents in sexual misconduct cases at Vassar College are ...invariably found guilty, regardless of the evidence, or lack thereof."  But this too will be a difficult argument to pursue, as it requires the plaintiff to show not only that male students are overwhelmingly found guilty, but falsely so.  The amount and type of evidence that would be necessary to make that showing would be very difficult to acquire.

But just because Title IX is a difficult cause of action for male plaintiffs to sustain in these cases, doesn't mean that men are without recourse when falsely accused.  Vassar's policy that governs disciplinary hearings is effectively a contract with its students.  To this end, Yu's complaint contains a breach of contract claim as well as others like negligence and unfair and deceptive practices.  I suspect that if he prevails in this litigation, it will be on one of these claims.

Campus SaVE Act Codifies Institutions' Sexual Assault Response Requirements

As I posted yesterday, I just attended the annual conference of the Association of Title IX Administrators, an organization doing good work to empower Title IX coordinators and other college, university, and K-12 officials with information and strategies for compliance and best practices. One of the most valuable sessions for me was the one focused on the recent congressional amendments to the Clery Act (see part f), the statute that requires post-secondary institutions that participate in federal financial aid programs to report statistics on various campus crime, including sexual assault. While the Clery Act is a distinct statute from Title IX, the overlap and interrelation between the two warrants ATIXA's focus as well as the focus of this blog.  

The amendments, collectively known as the Campus Sexual Violence Elimination Act (Campus SaVE Act), were passed as part of Congress's reauthorization of the Violence Against Women Act earlier this year.  Campus SaVE adds new crimes to the list of those which, under Clery, must be tallied and reported to the government in annual security reports (ASRs). In addition to statistics on sex offenses, both forcible and non-forcible, that must already be reported, ASRs must now include data on occurrences of domestic violence, dating violence and stalking.  Campus SaVE also requires institutions to report on their policies and procedures designed to prevent and address sexual assault and other intimate partner violence.  These policies must include provisions regarding the institution's obligation to notify victims of their rights to report and pursue relief from local law enforcement, as well as to provide information about available campus resources and possible accommodations.  Institutions' disciplinary procedures used to address accusations of sexual assault/violence must include specific provisions meant to equalize the playing field between accused and accuser, such as the accuser's right to request prompt proceedings, the right of both parties to be accompanied by an advisor and to present testimony, and the right of both parties to be informed of the proceeding's final results.  Institutions must also report to the government what efforts they undertake to prevent campus sexual violence, specifically including programs aimed at primary prevention (i.e., stopping rape and violence before it occurs) that extend beyond risk reduction (e.g., telling female students not to walk alone at night or leave their drinks unattended at a party).  The efforts described must also include information on bystander intervention and a clear definition of consent. 

  

In many ways, the new requirements under Campus SaVE echo the compliance steps OCR laid out in its 2011 Dear Colleague letter containing its interpretation of how Title IX requires colleges and universities to prevent and address sexual violence.  But, as the ATIXA presenters explained, it is significant that these requirements now appear as part of a congressional statute. Unlike agency policy, which can change with the next presidential administration, statutes can only be amended by a majority vote of Congress.  Moreover, as a part of the Clery Act, the Campus SaVE provisions are likely to have more teeth, since Clery authorizes the Justice Department to issue fines for noncompliance.  In contrast, OCR’s primary weapon in Title IX enforcement—revocation of federal funds—is a gun too big to use, which as a result has never been fired.  Title IX violations are thus often remedied by nothing more than a promise to do better, while Clery Act fines are serious business (hello Yale) that are likely to operate as a stronger deterrent to noncompliance.       

  

ATIXA's presentation on these requirements provided straight talk to educational administrators about compliance.  This is not an organization devoted to finding loopholes and helping institutional members get away with minimal compliance.  Yes, ATIXA presenters kvetched about the many ways in which these new requirements are not college and university-friendly.  But part of their message was that government intervention—whether in the form of congressional statute, or a steady stream of new Dear Colleague Letters from the OCR—is the price institutions pay for their past attitudes of minimalism and avoidance.  The underlying message, tailored to the audience of university administrators, was: you can look for loopholes, and play roulette with enforcement; but if you want the government to back off and trust you, start doing the right thing.  Imbue your compliance efforts with the primary motivation of actually helping to report, investigate, address, and prevent sexual assault and other gender-motivated crime.  Do what’s right for students, for their sakes, and at the same time, you'll be doing what's right for the sake of avoiding liability and noncompliance.

Know Your IX Addresses ATIXA Conference

I am headed home from Napa, California, where I've spent the last couple days attending and presenting at the annual conference of the Association of Title IX Administrators (ATIXA).  It's been an amazing conference.  I've learned so much--from the opening keynote speaker, Emily Bazelon, journalist and author of a new book about bullying, to panels on Clery and Campus SaVE Act compliance (more in a future post) (presented by ATIXA attorneys), decriminalizing university responses to sexual assault (Nancy Chi Cantalupo), and sticky issues when harassment and assault occur off-campus or involve third-parties (Joni Baker).  But I think the show-stoppers were Alexandra Brodsky and Dana Bolger, two student leaders in the Know Your IX campaign, who were our closing keynote today.  Know Your IX is informing and supporting students across the country addressing campus sexual assault.  Students associated with Know Your IX have been involved in several of the high-profile complaints to OCR about various colleges insufficient responses to sexual assault.

I liked many things about Brodsky and Bolger's presentation.  First, by chance, they happened to be speaking to us within hours of a major milestone for Know Your IX, the launching of their excellent website.  One issue we conference attendees had been discussing was the importance of conveying clear information to students about victims rights and resources.  Colleges and universities have a knack for putting information on websites that are counterintuititve and difficult to navigate.  It was terrific to see in their website an example of clear and straightforward dissemination of this kind of information.

Another thing I liked was their insistence that when we talk about sexual assault on college campuses, we actually talk about the culture of sexism that creates the environment for it to happen.  Brodsky, who is from Yale, gave the now well-known examples of the sexist fraternity chants ("no means yes...") to illustrate the point that a culture of sexism is the basis for a culture of assault.  Rape prevention, therefore, isn't just a matter of telling girls to use the buddy system and guard their drinks at parties.  It's about addressing---and changing--a culture that allows women to be demeaned and objectified.

Lastly, I appreciated their acknowledgment that Know Your IX is not representative of female student survivors of, and those who are threatened by, sexual assault.  They were keenly aware that the white, straight, and economically privileged public face on the recent efforts to challenge university's failures to address sexual assault runs the risk of rendering invisible sexual assault that affects women of color, queer women, or that occurs on less prestigious campuses. The fact that the Know Your IX website addresses intersectionality head on, with sections on "dealing with intramovement racism" as well as sections for religious survivors and those likely to confront homophobia as survivors, is a good first step towards ensuring Know Your IX becomes a meaningful resource for, and movement of, diverse women.

ATIXA did well to close the conference with the perspective of students whose lives have been affected  by sexual assault and whose activism is changing the landscape of Title IX compliance. I am already looking forward to next year's conference!

Student Denied Leave for Childbirth Files Complaint Against College

A student at Logan College of Chiropractic/University Programs in Missouri has filed a complaint against the school, alleging that it violated Title IX when it refused to recognize childbirth as an excused absence.  Brandi Kostl emailed her dean from the hospital about anticipated upcoming absences as she was about to undergo an emergency Cesarean section. The dean replied with reference to the college and faculty member's attendance policies, under which childbirth is not excused.  As a result, Kostl returned to school after 11 days, before she was fully healed, in order to minimize the academic penalty against her.  Even still, she ended up receiving an F in two classes. 

Kostl and her attorneys at the National Women's Law Center argue that the college's failure to accommodate her absence for childbirth violates the Department of Education's Title IX regulations, specifically, 34 C.F.R. 106.40(b)(5), which provides:

 a recipient shall treat ...childbirth as a justification for a leave of absence for so long a period as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began.

NWLC filed a similar complaint earlier this year on behalf of another student who had a similar experience at a CUNY school.  That complaint resulted in a settlement favorable to the student.