Controversy over Minnesota HS League transgender athlete policy

I know we heard/read about the proposed policy by the Minnesota State High School League--and its tabling--that would legislate the participation of transgender high school athletes in Minnesota. It has generated significant controversy, so I am somewhat surprised that we neglected to post anything about it. I shall remedy that here.

It is back in the news, as the policy--somewhat revised--is slated to be discussed next week at a meeting of the MSHSL board, in what is being called "round four."

The policy, which remains the same in that it asks for transgender students to provide a letter from a health care provider attesting to the student's gender identity, continues to draw concern from Catholic and child protection groups in Minnesota who are putting forth somewhat tautological arguments:
“You tell me, where is the research that a biological male or a biological female is not a biological male or a biological female,” MNCPL state coordinator Michelle Lentz said.

Unfortunately this is not even the most problematic statement being made. 

The newest version of the policy will allow schools to decide how to handle the issues surrounding bathrooms and locker rooms. The locker room has created the biggest controversies with opponents of the policy who are apparently worried that children will fake their gender identity in order to gain access to the so-called opposite gender's space and/or that transgender athletes will engage in predatory behaviors.Or at least that is how I am reading it given that they keep referring to (abstract) transgender people by using their non-preferred gender identity.

Opponents clearly do not understand what transgender means. This was made obvious by the state's Child Protection League which took out a newspaper ad days ahead of the original consideration of the policy which had been receiving little attention up until that point. The ad said "A male wants to shower next to your 14-year-old daughter. Are YOU OK with that?”

Again the fear seems to be that predatory boys--of course they use the word "male" which immediately connotes an adult--will be trying to pass as a girl in a way that is harmful to a so-called real girl (note the significance of the use of a precise age alongside "daughter").

I could launch into a quite cynical argument that there are easier ways for boys/males/men to prey on girls, but that be a diversion--an erasure--of the actual issues here, which are 1) the continued discrimination of trans students and 2) the legislation of the bodies and activities of transgender children.

Though both Erin and I write about transgender athletes and the range of policies that govern their participation at all levels of sport, looking always for the best practices, assessing each unique situation, in the end there is no perfect policy. Every one is fraught and that is because they all attempt--very often without the input of the people who are most affected by them--to define what transgender is and make it--and by extension, transgender people--comprehensible, perhaps even palatable, to a general public.

In the case of the Minnesota policy, though it falls toward the less restrictive side of the spectrum (as compared to the IOC's Stockholm Consensus) it still requires "proof" beyond the student's word, taking agency away from that student and placing the power to make decisions about the correct way to do gender in the hands of a health care provider. This means authority over gender identity again is removed from the child seeking to define it for him/her/themselves. The student continues to have to ask permission to engage in a gender identity and also must do so in a way that others decide is appropriate.

This last part is particularly salient in the locker room discourse. Now that MSHSL has left it up to schools to decide how and by whom locker rooms will be used, the stigmatizing potential of the policy has grown and will likely affect any transgender athlete. The publicity around this one aspect of the issue, I suspect, will mean that schools will take a very conservative route in legislating locker room use. This could result, for example, in transgender athletes being given some kind of private space thus denying that student the full experience of being on a sports team--which I would argue is itself gender discrimination and something one might file a lawsuit or complaint about--in addition to the stigmatization.

In other words, in an effort to avoid controversy from a vocal minority, schools could be perpetuating the discrimination the policy allegedly seeks to remedy. Again, this is but one problem with what has been happening in Minnesota around this issue.

I am quite interested to see what happens this week, whose voices and positions are heard and validated, and what policy--if any--emerges.

OSU Band Situation

It's been a busy semester for us, so we have not always kept up with the latest Title IX happenings. I am actually looking right now at a white board of my things to do which includes a list of posts I want to write.

One of those is the Ohio State band situation that made headlines this past summer. OSU plays rivals Michigan this Thanksgiving weekend, so I figured it was as good a time as any to do an update post.
What has happened in the wake of band director Jonathan Waters's firing has made less news than the original story and the subsequent protests of his firing, but as the OSU band has marched on (yes, intended) there have been developments in this story.

In September, Waters began a lawsuit against the university seeking reinstatement (plus a million dollars in damages) and--ironically--used Title IX as part of his defense saying he was discriminated against because of his gender. OSU did not seem to blink saying that such a claim was invalid given that he is a member of the male majority. They also responded that because Waters was an at-will employee, they could fire him at any time. (He had claimed lack of due process in his dismissal.) They also claimed that he hid aspects of and misled investigators about the climate in the band; the climate that seemed to promote sexual harassment and assault and which was brought to the attention of the administration last spring by a mother of a band member. He was also accused of mishandling complaints of sexual harassment and assault that were brought to him during his tenure. Notably, as this was happening, the university entered into an agreement with OCR to end the investigation into the university's mishandling of sexual assault cases.The investigation did not stem from the complaints about the band.

Most recently, an independent task force created specifically to investigate the band culture and headed by former attorney general Betty Montgomery issued a nearly 100-page report based on interviews with almost 200 people that included many recommendations about how to change the culture. The task force, though, was committed to maintaining some of the band's longstanding traditions (though it recommended elimination of the most egregious ones) just altering them to make less problematic.The report did not discuss Waters's dismissal, only his role as the leader of the organization and an instructor. The report did not limit itself only to the culture under Waters. Waters has responded to the report saying that he agrees with the report and its recommendations and says that these are things that he was trying to accomplish when he was fired. (video here) He said that he was "the solution to the problems they were having." And he still wants his job back.

He is, though, looking for another job in the meantime. His lawyer reports that he has not received any offers since his firing. This is not surprising. Unless there is solid evidence that Waters did not do what OSU is alleging he did, any university hiring him would be incurring some liability. Though Waters has received a tremendous amount of support from the OSU community (well outside of administration), I do not think that those a step removed from the situation see things the same way.

Springfield, Massachusetts Middle School Could Stand Trial Over Student's Sexual Assault

A federal district court judge in Massachusetts denied the Springfield School Committee's motion for summary judgment on a Title IX filed by the mother of a female student who was sexually assaulted by a male classmate at Duggan Middle School. The mother's complaint alleged that school officials were on notice due to a prior incident of inappropriate sexual contact by that same male student.  After that initial incident, teachers separated the students and ensured no further contact for the remainder of the school year.  But the next school year, both students were placed in the same class and no warning provided to their teacher about the prior incident.  The teacher allowed the students to be unsupervised together, which the male student took as an opportunity to commit sexual assault on two occasions.

The court determined that the mother's allegations on behalf of her daughter state a claim for institutional liability under Title IX, which requires plaintiffs to prove that school officials had notice of a threat of sexual harassment or assault and responded with deliberate indifference. Applying this standard, the judge determined that, despite the school officials' initial vigilance, their failure to provide any continuity the following year could, if proven, satisfy the standard.

The next step in this case will likely be a conference to set a timeline for trial. In many cases, however, surviving the defendant's motion for summary judgment provides the plaintiff with greater leverage for a settlement.

Court Dismisses Sexual Assault Case Against Northwestern

A federal district court in Illinois has dismissed a female student's lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor.  The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professor's advances because she was intoxicated.  In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated.  The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact  with students overall. Even though the university's response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professor's assault.  Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014).

Though the student's lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act.  Meanwhile, Ludlow has filed various lawsuits of his own.  In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the student's case discussed above. This lawsuit also charges discrimination in the university's response to a second student's allegation of Ludlow's sexual misconduct. Ludlow's other pending lawsuit is against that second student for defamation.

The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students' willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own.  One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed.  While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that it's a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlow's defamation case against the student prompts any to adopt one.  

Huntsville-Alabama Title IX case and how we understand violence and athletes

Erin has already written about the sexual assault case in Huntsville, but I want to put it in the larger context of what I have been seeing, thinking, and discussing.
 
We have been hearing a lot about sexual assault and intercollegiate football of late (Florida, FSU, Missouri) in addition to the domestic violence allegations against professional football players.
Also still in the news is the campus (and spreading) activism about sexual assault in colleges.

These are not separate issues, even though they sometimes are covered and discussed in different spaces and places--including different sections of the newspapers and different television stations. But these differences, in presentation, speak to the visibility of the issues.

In the movement to fight against and seek awareness of campus sexual assault, the voices and images have been dominated by young women. There has been a concerted effort on the part of activists, like those involved in Know Your IX, to ensure that these are not just white women, or even just women.

However, looking at the coverage of perpetrators in stories about sexual assault activism we see something much different. In the cases of sexual assault by male college students (who are not athletes) we don't see much at all. Their identities remain--in the media at least--largely invisible. This is somewhat unusual given that the media usually protects victim's identities. But in the stories of women who come forward to protest their treatment by and at their schools, the men remain unidentified and their race is presumed to be white. This is not a criticism of the media coverage, rather an observation--an observation that emerged out of the coverage of male student-athletes who commit sexual assault. The picture we see in these situations is of assailants and not victims. The assailants have been football or basketball players who are Black men.

The similarity--no discussion of race. We know that men of any race can be perpetrators, but the majority of perpetrators being named and seen are Black men, who are athletes. This perpetuates the stereotypes of Black men, especially Black male athletes, as inherently violent. This is not to say that these men are innocent or that the schools have handled these cases well; the latter is certainly not true--but that the picture skewed.

This is why the Huntsville case was an interesting interruption of sorts. Yes, a student athlete, but a hockey player. Again we know that hockey players can commit violence against women too (there are several current cases in the NHL), but we have not seen them in the coverage of sexual assault. And the athlete is white. (He is foreign-born, which of course does not negate his whiteness, but provides some complication of the good American white boy athlete image that runs in contrast to the violent Black athlete.)

This case, despite being just as egregious as the ones we have heard so much about, received much less media attention. One might argue that this is because college hockey is not as popular a sport as college basketball and football (though as UNH alum, Erin and I might disagree) or he is not a high-profile athlete. Besides Jameis Winston, though, none of the other accused student-athletes have been national names.

I am glad that the Huntsville case was resolved and wish the others were being better handled, but in addition to questioning how these cases are being handled, we need to question what we are seeing (and not seeing).

OCR Finds Title IX Violations at Princeton

The Department of Education's Office for Civil Rights announced yesterday that it has entered into a resolution agreement with Princeton University after finding that the university violated Title IX in the manner on which it handled reports of sexual assault by students. OCR's findings derived from an investigation that was prompted by three complaints that the agency received from students who alleged to have been sexually assaulted on campus in the 2009-10 and 2010-11 academic years. The agreement obligates Princeton to correct aspects of its policies and procedures that resulted in the institution's failure to promptly and equitably respond to its students' reports of sexual assault, including instituting the correct “preponderance of the evidence” standard to investigate sexual assault and violence allegations, ensuring that parties' have symmetrical rights to appeal, and to provide prompt time frame of generally 45 days in which such matters should be handled.

Princeton is also obligated to re-visit all complaints of sexual misconduct that it received from the 2011-12 school year until now and evaluate those cases for whether its own response complied with Title IX's "prompt and equitable" standard as well as the institution's obligation to provide interim measures to the victim and address any hostile environment or retaliation experienced by the victim. Princeton must submit its review to OCR by February 1 of next year, and must also take "appropriate action to address any problems that it identifies in the manner in which these cases were handled."  According to the agreement, such appropriate action could include providing the victim with counseling or other support, an academic adjustment, or even reimbursement of educational expenses.  By way of example, I could imagine that if the victim's grade suffered as a result of the university taking too long to resolve her case, appropriate action might be revising her transcript as if she had withdrawn from the course.  Or if hypothetically the victim suffered repercussions from the university's botched response to her sexual assault that it ended up taking her longer to graduate, or if she had to move out of the dorm and lose her housing deposit because the university failed to take proper interim measures, then reimbursement of these added costs could be appropriate. 

One thing that resolution agreement makes clear, however, is that the university is not expected to re-open disciplinary matters that have already been concluded, even if it finds that the process was flawed in ways that could have been material to the outcome.  Even though the idea of rehearing is appealing from a fairness perspective, I'm guessing OCR considered this possibility to be too disruptive to people's settled expectations -- perhaps even including the victim's -- and not worth that emotional cost. All things considered, OCR seems to be saying that the best way to address problems with past sexual assault hearings is to acknowledge them, help the victim if possible, but leave the result alone. 

Alcorn State Football Player Remains Eligible Despite Prior Sex Offense

Inside Higher Education reported today about the controversy surrounding football player Jamil Cooks who was recruited by Alcorn State after committing sexual assault at his prior institution, the Air Force Academy.  This week the NCAA confirmed that his eligibility to play for Alcorn State is not affected by his status as a sex offender and that the association leaves it up to individual institutions to make decisions about whether to admit a student with a criminal record.

When the reporter for this story asked me about possible Title IX implications for Alcorn State, I immediately thought about Williams v. University of Georgia, a case in which a student who was gang-raped by a group of student athletes sued the school under Title IX.  A federal appellate court agreed that she had a strong enough case to make it to trial, since it was possible for a jury to conclude that the university met the standard for liability, which consists of notice and deliberate indifference. The plaintiff argued that the institution was on notice of the threat posed by one of the players who was recruited after had been dismissed from his prior institution for sexual assault.  

Alcorn State would appear to be on notice of a similar threat; after all, as noted by Inside Higher Education, about 90 percent of campus sexual assaults are committed by repeat offenders.  If Cooks re-offends at Alcorn State, the institution would certainly face a lawsuit in which the victim would argue that Alcorn State is liable for damages for having recruiting a known sex offender and not taking any precautions to ensure the safety of other students. The only thing that would save Alcorn State from a hefty damages award or settlement (University of Georgia paid a six-figure settlement) would be if it could somehow convince the court that its officials did not act with deliberate indifference towards the risk, like maybe if they subjected Cooks to supervision, or made him take sexual assault training, or had him on some probationary status. Such precautions would not necessarily be sufficient, but if, as I suspect, Alcorn State is not taking any steps to address the risk Cooks poses to others, keeping him on the team is -- as I said to the reporter -- a "ticking time bomb" of Title IX liability.