Department of Justice Supports Transgender Student in Lawsuit Over Bathroom Use

Today the Department of Justice filed an brief on behalf of a transgender boy who sued his school district in Virginia after he was denied access to the boys' restroom.  The brief sets for the Department's position that Title IX requires schools to allow transgender individuals to use the restroom consistent with their gender identities.  A key section of the brief sets forth the agency's rationale:

“Under Title IX, discrimination based on a person's gender identity, a person's transgender status, or a person's nonconformity to sex stereotypes constitutes discrimination based on sex. The term 'sex' as it is used in Title IX is broad and encompasses gender identity, including transgender status. ...

“Prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination."

This is not the first time the Department of Justice has taken up the cause of discrimination against transgender individuals.  Additionally, the Department of Education has signaled its interpretation of Title IX is similar as well.  Yet, courts have been reluctant to take this view, see, e.g.  Hopefully the push from DOJ in this case will help turn that tide.

Recent Law Review Articles Examine Title IX's Application to Sexual Assault, Transgender Rights

Today I read two recent law review articles that warrant mention on this blog.  The first article, by Lambda Legal attorney M. Dru Levasseur, examines a variety of legal contexts in which transgender rights are undermined by courts and other decisionmakers' tendency to distinguish "biological sex" from gender identity instead of viewing the latter as a constituent of the former.  In contrast, he notes recent examples in which the Department of Education has taken the position that sex discrimination encompasses discrimination on the basis of gender identity, such as in the enforcement of Title IX, a sex discrimination statute, to allow transgender students to use bathrooms according to their gender identities.  Levasseur challenges courts to follow suit.  By updating their thinking on the nature of etiology of sex and recognizing gender identity as a component of sex, they can properly interpret sex discrimination statutes (and other legal contexts that require a definition of "sex") to validate and protect trans identities.

In the second article, Boston University law professsor Katharine Silbaugh argues that in Title IX's application to campus sexual assault has been unnecessarily influenced by Title VII caselaw to adopt a "criminal justice model"-- one focused on punishment in individual cases -- rather than a "public health model" -- one focusing on community-wide prevention. She goes on to make the case that OCR's enforcement efforts should seek to motivate colleges to adopt robust preventive measures --  aimed at such targets as climate, relationships, and social norms -- rather than micromanage their post-assault response. This shift in focus, she argues, better utilizes the skills and talents of colleges and universities.  Moreover, a public health model is a better fit for Title IX's civil rights objective, since it aims to protect the ability of all students to partake fully in their educational experience without having that opportunity limited by sexual violence.

Articles cited:

M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943 (2015).

Katharine Silbaugh, Reactive to Proactive: Title IX's Unrealized Capacity to Prevent Sexual Assault, 95 B.U. L. Rev. 1049 (2015)

UCLA faces lawsuit for handling of graduate students' complaints

This week the internets were flooded with discussions and news and comments on Professor Tim Hunt's statements about women in labs. And though they certainly have their problems (which need addressing), the hard sciences alas are not the only fields in which women face a sexually hostile environment.

This week two history graduate students at UCLA filed a lawsuit against the school* and its trustees which states that the school did not properly address their respective complaints of sexual harassment and assault by one history faculty member. Both women were, in some way, discouraged from moving forward with the complaint and/or disciplinary hearings. There was an investigation of one of the women's complaints, but she alleges she was not apprised of how the situation was being handled. There was no investigation of the other.

We have seen more and more graduate students coming forward with experiences of harassment. These stories should be increasing the awareness that the situation of graduate students does not resemble that of either undergraduates or faculty members, though they have the duties/responsibilities of both. So when graduate students experience harassment and possible retaliation, administrators need to realize the unique position these students are in. One faculty member can have a huge influence on a graduate student's education and career. This does not mean that schools should take more seriously the complaints of sexual harassment and assault when they involve faculty and graduate students, but that there are different issues. This lawsuit may make that dynamic a little more clear.

* UCLA is already on the list of schools OCR is investigating.

Competition over ethics implies Saban

I wrote last week about the new SEC policy preventing the transfer of student athletes with serious misconduct issues to SEC schools. Though it passed with ease among SEC administrators, it is not without controversy.

One person raising some objections is Alabama football coach, Nick Saban. Saban is worried about the competitive advantage other conferences will receive because they do not have such policies. So athletes, again athletes who have been found responsible for sexual assault and domestic violence by their former schools, will get turned down because of their record of, again sexual assault and domestic violence, and then attend non-SEC schools. Remember, Saban is the recipient of such a player--Jonathan Taylor. Taylor was under investigation at Georgia for domestic violence when he transferred to Saban's squad. He has now been kicked off that team because of being arrested again for domestic violence.

Let's be clear--these are arrests. Public record arrests. We are not even talking about sketchy (Title IX violating) internal investigations within athletic departments. We are not even dealing with, in this situation, student conduct hearings and the privacy issues attached to those. The lack of compliance with Title IX regarding policies and procedures, as I said the other day, is part of the reason the SEC policy is only one step in addressing the problem of student athletes who commit sexual and domestic violence. But it's a step Saban does not want to make because he believes it might harm the SEC and its ability to compete with the other power five conferences.

In short, he is saying f&^* ethics and the safety of (mostly) women on campus--we need to win. He is upset that the SEC is hindering the way he operates his program, but framing it as just looking out for the best interest of the conference.

He is not the only concerned SEC coach. Also notable is that the coach who lost Taylor to Alabama, Georgia's Mark Richt, was also a little concerned about the new rule. He was slightly more tactful and used a paradigm of second chances rather than the "but what if we aren't as good without the rapist on our team" argument.

Why is this policy being passed now when campus sexual assault has always been a problem? Well because the general public is starting to realize that it's an epidemic. And while sports fans might  allow some questionable practices that result in perks to student-athletes and wins for our favorite teams, the ability to get away with rape and violence is not one of those, and it is increasingly difficult to ignore the issue.

If Nick Saban took a little more time to think about this he could have both gotten his concerns addressed (without looking like a privileged, ignorant jerk) and been a hero (well for reasons other than football). Because what he could have said was this: This rule exemplifies the ways in which the SEC is a leader both on and off the field and is addressing a serious issue facing college and university communities. But we should not be the only ones. I urge the other conferences and the NCAA to implement similar policies regarding transfer athletes so that we can guarantee the safety of our student body and maintain the integrity of our athletic programs.

But that's not what he said.

OCR Will Investigate Iowa Complaint

Last February we blogged about the complaint University of Iowa field hockey players filed against the university over the termination of their coach, Tracey Griesbaum. This week we learned that the Department of Education's Office for Civil Rights has decided to investigate the complaint and determine whether the university in fact discriminated against the players in violation of Title IX.

We believe this is the first time the government has ever considered a complaint about a coach's termination to be sex discrimination from the players' point of view. Title IX regulations require equal treatment between men's and women's programs in the aggregate, including the quality of coaching athletes receive as a component of that requirement. The players argue that when Iowa fired Griesbaum over complaints about her demanding coaching style, the university imparted a sexist double standard that deprived them of the opportunity to be challenged by a successful, demanding coach.  Importantly to the framing of this claim, male athletes at Iowa  are given that opportunity, as evidenced by the fact the university has never disciplined coaches of men's teams for being too hard on them. 

It will also be interesting to see whether OCR looks at the harmful message a university sends to female players who might be aspiring coaches when it fires a female coach over conduct that is tolerated and even encouraged from male coaches. Because female athletes could be discouraged from pursuing a lifelong relationship with college athletics in a way that male athletes are not, this is arguably another way in which firing a female coach is sex discrimination from the players' point of view.

Another female coach leaves Minnesota Duluth

The hits just keep on coming for University of Minnesota Duluth Athletics.

The women's basketball coach, Annette Wiles, who has compiled a winning record over seven seasons with the Bulldogs, has resigned her position citing the unhealthy work environment. She is the third female coach to leave this year. Hockey coach Shannon Miller was not brought back (her contract expired at the end of the academic year) allegedly because of financial reasons. She was told her salary was too high. The director of hockey operations--who is also the softball coach--was also let go. Though administrators say Jen Banford was only let go from her DOO position, not coaching, but this meant a renegotiated contract with a significant pay cut, so she resigned.

Wiles also left as she was attempting to negotiate a contract (an extension for the one set to expire this summer). A statement to the press from her lawyers, the same  ones who are representing Miller and Banford, states the athletic director Josh Berlo refused to discuss this with her.

The news of Wiles's departure was also accompanied by more information about the status of Miller's and Banford's legal actions against UMD. Complaints have been filed with the Equal Employment Commission and they are preparing for a lawsuit. It is not clear whether Wiles will join that lawsuit.

Considering the new SEC policy

The SEC announced a new policy this week that would prevent student-athletes with records of domestic violence and sexual assault from transferring to SEC schools (as athletes). It was a proposal made by Georgia and adopted fairly readily according to reports. Whether one particular incident (like Alabama's acceptance of a football player who was under investigation at Georgia for domestic violence at time of transfer and has allegedly re-offended) or just greater awareness of the issue of sexual assault and domestic violence inspired the new policy has not been made clear.

The exact wording of the policy is as follows: "a transfer student-athlete who has been subject to official university of athletics department disciplinary action at any time during enrollment at any previous collegiate institution (excluding limited discipline applied by a sports team or temporary disciplinary action during an investigation) due to serious misconduct (as defined herein) shall not be eligible for athletically-related financial aid, practice or competition at an SEC member institution."

In my recent research/writing/thinking, I have been looking at why athletics departments have not been affected by the increasing visibility of activism aimed at addressing campus sexual assault. In other words why have they, arguably, been relatively unscathed for not following correct policies and procedures when they learn that student athletes have been accused of sexual violence. Most colleges and universities accused of mishandling sexual assault reports do not truly fear the ultimate--and only--penalty the Office of Civil Rights can levy--loss of federal funds--because it has never happened. There are potential large financial penalties if students file lawsuits rather than or in addition to a complaint with OCR, as happened at University of Connecticut.

The biggest hit at the moment, however, is the one schools take to their reputation. As campus sexual assault becomes more visible because of activism, media coverage, survivor narratives, and investigations schools are receiving considerable negative attention. And schools do not want this.

The desire for reversing negative publicity does not seem to apply at the moment to athletics departments. They seem to be weathering the storm fairly well. Look at Florida State. Look at Colorado, who paid out a multi-million dollar settlement in the mid-00s. Look at Oregon currently under investigation and facing a lawsuit. Have their athletics departments suffered? Have people called for boycotts of games or stopped buying merchandise? No. Have schools reprimanded their athletics departments by imposing internal sanctions or firing administrators who fail to policy and procedure in these matters? Not that I have seen.

Actually, let's go back to Oregon. It provides an example of how the SEC policy, while a good one, would not work in this case because of a culture of secrecy and protection of student athletes. Oregon took as a transfer a player from Providence College who was kicked off that basketball team for alleged participation in a gang rape. But he was not formally punished or investigated by the college. There was nothing on his transcript. Oregon officials maintain that they did not know of his past. He was then kicked off the basketball team, along with two other players, after a student accused them of rape. Said player, Brandon Austin, has transferred to a junior college in Florida. They are aware of the accusations against him.

So the SEC policy, if it existed at this junior college or the conference to which it belongs, would have prevented Austin from transferring there for the purpose of playing basketball. But it would not have prevented the original transfer from Providence to Oregon.

In other words, this policy does not get at the whole problem. It is based on the premise that schools and their athletics departments are doing their jobs in reporting and investigating sexual assault and violence in the correct way. This is not universally true. We cannot know statistics, unfortunately, on this matter. Most of the evidence is anecdotal and we have to assume that the lawsuits that have emerged are a small percentage of actual mishandling based on what we know about underreporting and the harassment and dismissal of those who do initially report.

The SEC's policy does not mean there will be no more offenders accepted as student athletes at SEC schools. Look again at the exception in parentheses: "excluding limited discipline applied by a sports team." This is the type of discipline being doled out to accused student-athletes in an attempt to appease victims. It is a violation of Title IX if the act in question is sexual assault or harassment. It cannot be handled internally. This policy is a start at addressing this issue, but we need more done at the front end of this problem, including stronger punishments against offending athletics departments.

Complaint Against Northwestern Professor Does Not Pit Title IX Against Academic Freedom

Back in February, Northwestern professor Laura Kipnis wrote an essay in the Chronicle of Higher Education critical of (to borrow from her title) "sexual paranoia" on college campuses. One of the essay's main targets was what Kipnis describes as a lawsuit filed by a student against a professor charging that he had sexually assaulted her in the context of a dating relationship. Recently, Kipnis wrote a second essay (subscription required) detailing what happened to her in the aftermath of the first. Students reacted negatively to her first essay, and in addition to protesting its content, two graduate students also filed an internal complaint alleging that the essay was retaliation against the student who had filed the lawsuit and would deter other students from reporting sexual harassment against professors in the future. The focus of Kipnis's second essay was the obscure and lengthy process that the university used to investigate the complaint against her. Apparently, university officials were reluctant to reveal the charges against her, hired an outside law firm to conduct the investigation and adjudicate the complaint, buried information about the process in a labyrinth of web links, and took longer than the OCR-prescribed timeframe of 60 days to resolve the matter. In fact, at the time of Kipnis's second essay, the university had not yet reached a resolution of the case; though it has since found in Kipnis's favor and cleared her of all charges of wrongdoing.

Kipnis's essay has generated concern (see, e.g.) about the threat Title IX poses to professors' academic freedom. My view is that it is unfair to indict Title IX based on what happened to Kipnis. I think her criticism of the university's procedure for investigating the complaint against her is a reasonable one. Importantly, however, none of the ways in which the university obscured, outsourced, and prolonged the investigation process are requirements of Title IX. Northwestern could have dealt with the complaint against Kipnis in a more transparent, evenhanded, and efficient way without any risk of violating Title IX. Thus, there is no basis for predicting that universities motivated by Title IX compliance obligations would utilize similar procedures to evaluate charges against a professor stemming from an exercise of academic freedom.

Secondly, while I don't have access to the university's reasoning for dismissing the complaint against Kipnis, this outcome is entirely consistent with the law of retaliation more generally, and illustrates why it would be difficult for a student to ever prevail in a retaliation claim based on professor's written publication. Retaliation generally consists of adverse action targeting a person who engaged in protected conduct as punishment for that conduct. For words alone (i.e., without an associated tangible act) to constitute an adverse action against the person engaged in protected conduct, it would have to rise to the level of retaliatory harassment. Harassment requires the conduct that is severe or pervasive, and a single written essay, especially one that comments on a matter of public concern and public record, is neither. Moreover, the retaliation charges against Kipnis contained a mismatch between the person who had engaged in protected conduct (the student who filed the lawsuit against the professor) and the person(s) adversely affected by Kipnis's essay (i.e., the entire student body whose motivation to challenge harassment was arguably "chilled.").  For these reasons, there is little risk that professors would ever actually be found liable for retaliation based solely on the fact of a publication expressing academic freedom, and there is little grounds on which to generalize Title IX as a threat to that freedom.