Title IX and the Straw Man

Erin and I both talked to a New York Times reporter last week about whether and how California's new legislation allowing for a gender neutral designation on state IDs would intersect with Title IX regulations. (More on that below.)

My immediate thought, upon hearing that the California Family Council (CFC) was using Title IX as a reason for why the legislation was not a good idea (as their leader stated in a July editorial), was that Title IX is being used again as a distraction, a scapegoat, a tool of division. CFC's president Jonathan Keller was employing the straw man fallacy when he wrote that:"The new “nonbinary”* gender created by this bill would likely be subject to the federal Title IX statute. This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state." We discussed why this was not going to happen.

Erin gave the reporter a number of reasons why CFC's legal argument was specious. For one thing, it assumes that the Department of Education is going to be aggressive in its enforcement of Title IX in general (which it is not) and in particular, that it is aggressive in its enforcement of  Title IX as it applies to gender identity diversity and transgender rights (which it has so clearly backed off of). Next, it would require the Department of Education, which enforces federal law, to defer to state law, event though federal law normally preempts conflicting state law. Even then there would be the challenge of reading the Title IX regulations to incorporate new gender categories. Given the use of phrases like  "both sexes" and "one sex ...[and] the other sex,"  realistically the law would not be read to cover a third gender category. Finally, even if  Title IX's athletics regulations did incorporate California's nonbinary gender category, schools would of course only be required to at most provide participation opportunities proportionate to the percentage of students who are nonbinary. Because nonbinary students are a really small percentage of the population, even if Title IX applied, the burden on schools would be small.  I discussed the existing policies at the K-12 and collegiate level and how gender identity was either honored or it was superseded by hormone use (in the case of NCAA sports). Those arguments were easy and we were happy to explain them. What has arisen for me since the article was posted is how the law is used by people who do not care about it being enforced until it can be levied against a more disliked minority group. It was likely inevitable that the law mandating gender equity in education would be used as a tool of division by those who actually do not want equity. CFC's argument above is just one example. Everyone is harmed when the argument becomes about who deserves protection more. In between the lines of CFC's very calmly worded editorial is the following message: "real" girls and women will suffer because of the demands of a deviant minority group. Resources will be drawn from women's and girls' sports to create teams comprised of nonbinary persons. You want gender equity? Well then you cannot have nonbinary equity without it costing you--the taxpayers of California--a lot of money.

The overt hate, the malicious tone that we have seen aimed at transgender and non-binary people was absent from the editorial. But that does not mean that what CFC said, how they pitted women against non-binary people, was not hateful. As Title IX continues to be weakened, it could be easier for arguments like these to gain traction. Playing the oppression Olympics only benefits people like CFC and their supporters.

* I assume he used quotation marks because he does not think nonbinary is a thing. This was a rhetorical/grammatical mistake on his part. Nonbinary is indeed an adjective used to describe real things. Keller does not think nonbinary gender identity is real. He should put the quotation marks  around the phrase nonbinary gender to get his point across. 

Members of Congress Introduce Bill to Restore Withdrawn Guidance

Members of Congress announced this week that they have proposed a bill that aims to codify aspects of the Obama administration's 2011 Dear Colleague Letter and related guidance that was withdrawn by the Department of Education last month. It would also codify some of language in the Title IX regulations and the 2001 Guidance that the Department of Education is endorsing for now, but which could in the absence of statutory law theoretically be amended by new regulations or policy interpretations promulgated in the future.

The bill, authored by Representative Jackie Speier (D-CA) is called the Title IX Protection Act (H.R. 4030), and it would require that institutions:

• to designate a Title IX coordinator, and to disseminate a notice of nondiscrimination based on sex.
• to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) -- but not for sexual violence cases.
• to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. 
• to take "immediate action" to address a hostile environment created by sexual harassment, designed to "eliminate the harassment, prevent its recurrence, and address its effects". An actionable hostile environment is one "sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program," including an isolated incident of sexual harassment if the incident is sufficiently severe, such as rape.  This requirement to take action also includes interim measures to help the complainant deal with the effects harassment and avoid contact with the perpetrator.
• to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity; this requirement applies even if law enforcement is already investigating. 
• to use the preponderance standard of evidence to adjudicate sexual misconduct matters --this had been a key requirement of the 2011 Dear Colleague Letter, but one that the current administration abandoned when it permitted institutions to substitute the higher clear and convincing evidence standard.
• to provide symmetrical procedural rights to both the respondent and complainant, including the right to attend the hearing, to present relevant witnesses and other evidence, to access to information that will be used at the hearing, to be accompanied by an advisor, and to appeal the initial decision. 
• to permit cross-examination by a third-party -- in order to minimize the potential trauma or intimidation to the complainant of being questioned by the person they have accused of sexual violence.
• in cases where the complainant requests confidentiality (thus limiting the school's ability to discipline the alleged harasser), to "pursue other steps to limit the effects of the alleged harassment and prevent its recurrence."
• to conclude investigations approximately 60 calendar days, with an exception for cases involving multiple incidents with multiple complainants or where there is a parallel criminal investigation.

Unfortunately, it is difficult to imagine this bill getting much traction in Congress in this political climate. Nevertheless, I believe this bill is valuable because it can serve as a focal point for political activism. It may produce a legislative record that could influence the political debate ongoing in general and in particular in the Department of Education as it considers revising the existing regulations and policies. Finally, the bill serves as a general reminder of the role Congress has to play in challenging the president when it disagrees with the administration's policies.