Monday, December 29, 2014

Another bathroom case: New Jersey edition

A transgender student in New Jersey won a several month battle with his school district to use the boys' bathrooms. Unlike the situation in Virginia, the school board did not pass a formal policy stating that bathroom use was dependent on sex at birth. But Rubin Smyers and his advocates and allies, spent months negotiating this resolution which, as he noted, gave him permission for something he had permission for (legally) all along.

Smyers was told initially that he would have to use a single stall unisex bathroom (no word on how many of those were on campus). This "solution" was presented using the "civil and privacy rights" of cisgender students discourse that circulates around these situations.

The school board did not pass a policy that barred transgender students from using bathrooms in accordance with their gender identity. In hearing the complaint Smyers brought. however, and in making the ruling, it did enact another problematic discourse that may be on the rise: the "case-by-case" policy.

What is the rationale for this policy? Make the rules, set the precedent--in accordance with the law. Case-by-case policies discourage transgender students from coming forward and being able to enact their rights. This could potentially lead to more dangerous situations if cisgender students feel a transgender student is in the "wrong" bathroom. Stop requiring every transgender student to deal with the anxiety, ostracism, harassment, and retaliation that comes from having to ask permission--from a group of adults sitting at a big table--to go to the bathroom.

Saturday, December 27, 2014

ACLU steps in on Virginia bathroom case

As was predicted in a previous post (somewhat in between the lines admittedly), the born-in-the-sex bathroom policy established by the Gloucester County School District in Virginia is being challenged. The policy, which was passed a few weeks ago, stats that children in the district must use bathrooms in accordance to their birth sex. Transgender students with "genuine" gender identity issues will use separate facilities.

The ACLU has filed a complaint stating that the district's new policy (created in reaction to out transgender student Gavin Grimms's use of the boys' bathroom this school year, for which he was given permssion by the school principal) is a Title IX violation.

After the school board approved the policy, Grimms was forced to use the unisex bathroom located in the nurse's office. In addition to isolating him (as noted in the article), it also requires him to--I would imagine--go out of his way to use the bathroom; an inconvenience not experienced by other students.

This does not appear to be a formal legal challenge at this point, though I imagine the ACLU is prepared to go that route if the school board digs its heels in and ignores precedent regarding this issues.

Friday, December 26, 2014

Winston cleared by conduct board

I have spent the last several days going through the various accounts of Florida State University student-athlete Jameis Winston's student conduct hearing. And the more I read, the more my initial response of "disappointed but not surprised" has changed. Because I truly am surprised that former Florida Supreme Court Justice Major Harding really felt that there was not enough evidence to confirm the Winston had violated FSU's student code of conduct.

A note about the media coverage of this case and its outcome: several reporters have written something to the effect of "FSU is investigating Winston despite the fact that the prosecutor chose not to file charges against him last year because of lack of evidence." What happened with the potential criminal case (the highly problematic one), has no bearing on this investigation. Winston is being charged with violations of FSU's student code of conduct. The school's investigation is mandatory (and almost 2 years late). There is no "despite."

After two days of hearings earlier this month, which included multiple witnesses who were questioned by the complainant (victim) and respondent (Winston) respectively, Harding announced in a letter to Winston that he did not find that the information presented met the preponderance of evidence standard required in student conduct hearings. Harding was approved by both sides to oversee the hearing, in part because he had no ties to FSU. Other panel members, however,  were FSU employees.

Both sides had witnesses; both had advisers all of whom were lawyers. Advisers are only allowed to confer and offer advice. All questions to witnesses were asked by the respondent, the complainant or members of the panel. Both the victim and the accused offered opening statements. Winston, somewhat curiously, had his entered into the record seemingly as an attempt to make it appear to be evidence, which it is not. As has been noted already in this 2-year long case, Winston has continually refused to answer questions about the events of that night in early December 2012. This hearing was not very different. He did not, as was his right, take questions about his statement which gave his version of the events of that night. His two witnesses, the roommates and teammates who have already had their own student conduct hearings, also were called and they too--as was their right--refused to answer questions. These are the two men who could have corroborated Winston's version of the events of that night which differ greatly from those of victim and do not hold up to various accounts offered by other witnesses including law enforcement, friends of the complainant, and health professionals.

As a reminder of some of the details: the victim did not know the name of and could not identify Winston, who maintains that the sexual encounter was consensual despite never--as the student conduct code requires--receiving verbal or physical consent. She only recognized him when they, coincidentally, had a class together, even after hearing his name she did not know who he was (i.e., the quarterback for FSU). She sought help immediately after Winston brought her home (she lied to him about where she lived and he dropped her off nearby), from her friends, police (both campus and local), family, and medical professionals (she went to the hospital, had a rape kit performed and asked for a victim's advocate). This was not a case of trying to bilk a celebrity or feeling bad after a consensual sexual encounter and "crying rape." (These narratives are actually quite rare.)  

Often in cases of sexual assault--at least in the criminal system--the victim's credibility is questioned. There were questions swirling about alcohol consumption and willingness to get into the cab with the three (implying that she was seeking multiple sexual encounters??), which the victim addressed during the hearing. But Harding was apparently not convinced that the victim did not want to go home with the men. He writes in his ruling that she did not seek help from people outside of the bar where they all were. This presumes a couple of things. One, that she was able to or felt safe enough to protest. Two, that even if she did want to go wherever they were going that such an action was tantamount to consent to sexual relations with any of them. It is not, which is why the fact that even Winston's statement did not include the victim saying yes makes me question what evidence Harding was looking at when making what amounted to a non-decision.

Harding's rationale also questions her motives and credibility in a way that Winston's was never questioned. Winston's credibility was very difficult to question--because he wouldn't answer questions--though his past behaviors are well known (stealing, making disparaging comments about women in a public place, writing and posting a pro-rape song). It is clear that none of these actions were a factor for Harding and also point to a problem that might hurt FSU: they were never the subject of student conduct code investigations. 

The victim's lawyer, Baine Kerr, who was present at the hearing as an adviser, said to the press that he and his team do not believe Florida State intends to hold Winston accountable. Given what I have read, I have to agree with him.

There is a 5-day period (which will be in January given the semester break) in which an appeal can be filed, but Kerr has not said whether they will do so.  Kerr and his team are also working on a civil lawsuit, and there remains the OCR investigation into FSU's handling of sexual assault cases. In other words, it's not over--for anyone.

Thursday, December 18, 2014

What should we take from Miller's firing?

This post will start cynical  (it has not been a great week for discrimination against women in sports) but I will try to end on an up(ish) note.

So we can now add to the list of things that will get female coaches fired/dismissed/forced into retirement: having too high of a salary. This joins such explanations (which range in legitimacy--I'm not commenting on whether or not they are true, just that they have been offered in some suspect dismissals): having a family, not having a family, pulling a player's shirt, banning white bread, reporting gender inequity, yelling at players, being too feminine, not being feminine enough, too successful, not successful enough. 

University of Minnesota Duluth women's hockey head coach Shannon Miller, who coached her team to five NCAA championships, was told this week that her contract is not being renewed (she will finish out the season) because her salary--the highest of any head women's hockey coach at $215,000--is too high for the financially distressed UMD to sustain. Most of those reasons above are never applied to  male coaches (yes, Tim Rice at Rutgers--who was caught on videotape--is an exception and lack of success is often a reason male coaches get bought out of their contracts)--but certainly "we're paying you too much, so we have to let you go"  is something male coaches do not hear when they are sat down in the athletic director's office to be fired.

This incident cannot be looked at in isolation. Don't forget the story from just a few weeks ago out of Iowa and the apparent pattern of female coaches being fired, not renewed, or entering into early retirement.

Yes, UMD is a different school, this is a different rationale, but it is part of the pattern. We may not know exactly what the pattern is and, unfortunately, I suspect the number of smoking guns that exist to explain things are rare--because I don't believe there is one thing that makes an athletic department fire female coaches. It's about the power of male administrators, beliefs about female leadership, the value of women's sports, the value of female coaches, and so much more.

Though this story broke two days ago, I feel we are a little bit behind given the extensive news coverage. But--and here is the potential upside--doubts are being raised and questions are being asked. Dr. Nicole LaVoi of University of Minnesota has been speaking to the media and also posted on her blog, One Sport Voice, some revealing data about coaching, salaries, and discrimination. 

UMD made a mistake not just in firing Miller but in providing a weak justification, which only serves to make people question the actual justification. They also made a mistake in doing it so close to the revelations about what is happening at Iowa. And they underestimated a general public that dislikes overt discrimination. It may be difficult to see and understand structures and systems of discrimination, but it is not hard to see that firing a female coach under the guise of being paid too much when there are other, less successful male coaches who are paid more...well that's gender discrimination.

Wednesday, December 17, 2014

Dept of Ed weighs in on records release

We wrote in July about writer Jonathan Krakauer's attempts to get the records related to the hearings and disciplinary actions against a University of Montana quarterback. He was initally granted access but the decision was appealed and the Department of Education is filing an amicus brief  with the Montana Supreme Court for the purpose of "clarify[ing] that disciplinary records constitute protected 'education records' under" FERPA. The department claims it is not taking a side in the case, though it certainly seems like they are saying, with this filing, that Krakauer should not get access to these records, which is one of the two sides.

Several legal experts have weighed in on the case with no clear indication about how the law should be interpreted. Does the fact the the student's name is widely known matter? What about his status as a student athlete? How does public interest and protection weigh against the privacy of this student?

The legal wranglings, which are not my area of expertise, are actually manifesting the sociocultural concerns (more my speed) over how schools are handling sexual assault--specifically assaults committed by student athletes--and the balance between transparency and privacy.

We know that athletic departments have often tried to keep the punishment of crimes by student athletes "in-house." The NCAA addressed this issue over the summer by clarifying that investigations and punishment of sexual assault needs to be handled by the appropriate university officials usng university policies and procedures just as they would for non student athletes. But looking around (perhaps looking a little south--toward Florida maybe?), some might wonder how much influence this edict has had.

Also, given that the discourse from the Department of Education and the Obama administration has centered around transparency--in how cases are reported, handled, and investigated, how discipline is enacted, how communication among all the parties occurs--some see this amicus brief as pulling the shade down a little.

How or whether these concerns will play out in the appeal remains unknown. Here is what I know: a high-profile student athlete was found guilty of sexual assault and expelled. That punishment was appealed to the state commissioner of higher education (i.e., to a pretty high level) who reduced the punishment to a suspension that allowed the player back on campus in time for football season. Eyebrows are rightly being raised. In the end, the court may decide that FERPA does not allow for these records to be released, but that does not mean that an explanation should not be provided. I think that the story will come out regardless, the question is whether it will be supported by official documentation or the testimony of anonymous insiders familiar with the case.

Sunday, December 14, 2014

Court asked to reconsider NU lawsuit

The student whose lawsuit against Northwestern University was dismissed last month has asked the court to reconsider or vacate its decision based on new evidence. The initial dismissal was due to a lack of evidence that NU showed deliberate indifference in responding to the student's report of sexual assault by her philosophy professor.

The motion includes statements from the report of the investigation conducted by the Title IX coordinator. The writer herself expressed concern that the professor's behavior might be a pattern in which he uses his power as a professor to gain sexual and/or romantic access to female students. There are other statements from faculty members expressing no surprise at the allegations against Professor Peter Ludlow given his tendency to date former students. And there is documentation that Ludlow's department chair approached him several years ago about potentially inappropriate relationships with graduate students. (Ludlow has a defamation lawsuit pending against a graduate student who filed a complaint alleging a non-consensual sexual encounter. The first link above is to Erin's post about the many legal actions around this case.)

The student's motion also states that she continues to be a victim of retaliation by the university. This claim, which was also made in the initial lawsuit, was dismissed. She is reporting new retaliatory actions. 

In short, the legal drama continues with apparently none of it yet resolved.

Saturday, December 13, 2014

Lesbian Basketball Players Sue Pepperdine

Two basketball players sued Pepperdine University this week, alleging that their coach and their academic advisor harassed and discriminated against them on the basis of their sexual orientation and the perception that they were in a relationship with each other. The lawsuit filed by Haley Videckis and Layana White maintains that the conduct of these university officials amounts to violations of Title IX and their constitutional rights to privacy. 

The complaint provides examples of the conduct of head women Ryan Weisenberg that are reminiscent of Jennifer Harris's case against Penn State and Rene Portland back in 2006. He and the academic advisor allegedly made repeated inquiries into the dating and sexual habits of the two players, and also asked other players whether"Hayley and Layana are dating." He is quoted as stating, "Lesbianism is not tolerated on this team," which the players perceived as a threat to  pull their scholarships. Both players are apparently benched at the moment, for ostensible medical reasons that the plaintiffs allege are pretext for discrimination.  They allege that the harassment has caused emotional distress, including one of the plaintiffs to attempt suicide.

Despite these overall similarities with Harris v. Portland (which settled on terms favorable to the plaintiff), there is one seeming difference that could make a difference in whether it is actionable under Title IX.  The Pepperdine plaintiffs do not appear to allege that the coach's discrimination targeted them for harassment due to their gender nonconforming appearance or behavior, only their status as lesbians (or perception thereof).  This is important because Title IX only prohibits sex discrimination, not discrimination on the basis of one's sexual orientation. There is existing legal precedent for the idea that sex discrimination includes discrimination the basis of one's gender nonconforming appearance and behavior, but courts have yet to interpret homosexuality itself as an example of gender nonconformity that is protected under Title IX--even though that makes a great deal of sense.  It will be interesting to see whether this case turns into a vehicle to push for an expansive definition of sex discrimination that would be more inclusive of discrimination that targets students who are gay and lesbian.

Friday, December 12, 2014

Transgender student denied bathroom access in Virginia

It has been a week of adults fighting over and making decisions about where children can go to the bathroom and change their clothes.

First it was the Minnesota State High School League (which we wrote about here and here; check out UIowa PhD candidate Cathryn Lucas-Carr's post about the policy and some historical context here). And a couple of days ago the debate emerged, minus an explicit athletics component, in Virginia where a high school student has come out as a transgender male. Gavin Grimm was given permission--by the principal--to use the boys' bathroom and has been doing so all fall seemingly without incident.

A school board proposal drafted by one board member, Carla Hook, last month and approved this week now states that students whose birth sex matches their gender identity will be allowed to use communal restrooms. Transgender students will be provided private accommodations. In other words, bathroom usage will be dependent on the sex you were assigned at birth regardless of gender identity. Anyone who identifies differently will use entirely separate facilities.The same is true of locker room facilities.

It seems like the Gloucester County Public School Board was trying to be understanding given that the statements within the proposal did not outright (they believe) discriminate against transgender students and supported those with "sincere gender identity issues."

Here is what I read both in this policy and the one in Minnesota last week. Organizations/associations/school boards know they can't outright disparage these students by saying they are not "real" boys or girls. I guess we should be thankful for the current moment of greater cultural awareness in which some people are realizing that gender identity is a civil rights issue. What the policies are, though, are attempts to avoid legal issues. But it is clear that these decision makers know very little about the issues. The lack of understanding about gender identity (I mean we haven't even gotten into the "complicated" stuff like non-binary and genderqueer) has resulted in poorly worded policies that do little to ease the problems transgender students face. Grimm himself commented that the separate facilities option will likely cause him greater anxiety and depression--issues he has faced in the past.

The issues of student privacy being invoked in the discourse surrounding these policies is not about the privacy of transgender student, it is about the privacy of cisgender students. I question this idea that cisgender students' need more or would be denied more privacy rights that their transgender peers.

On a slightly more hopeful note: I suspect that the GCPS policy will not hold up under legal scrutiny. A similar action in Maine did not and the state was recently forced to pay out a settlement to a student and her family. I would like to see some challenges mounted to the Minnesota policy as well.

Thursday, December 11, 2014

OCR Finds Title IX Violations at SMU

Today the Office for Civil Rights announced the conclusion of its investigation into Title IX complaints regarding Southern Methodist University in Dallas. The agency investigated SMU's policies and procedures for handing reports of sexual harassment and sexual violence after receiving complaints from members of the university community alleging problems in their cases. One of those complaints alleged that the university did not provide a "prompt and equitable" response to a law student who alleged in 2010 that a professor had been making sexually harassing comments to and about her. While ultimately OCR agreed with SMU's determination that the professor's comments, while unprofessional and inappropriate, did not rise to the level of actionable sexual harassment, it noted procedural violations that the university committed in handing the matter, including an egregious four-month delay and its failure to notify the student of remedial action that it imposed on the professor. The other complaint OCR had received was from a student victim of sexual assault. In his case, the SMU police responded by investigating and arrested the assailant, and the university  implemented a no-contact order to keep him away from the victim. Yet, the university did not conduct a Title IX grievance proceeding and ignored the victim's repeated complaints that he was being harassed by other students in retaliation for his complaint.

Additionally, OCR's review of SMU's existing Title IX policy turned up a number of "paper" violations that SMU is obliged to fix to ensure that the process for handling reports of sexual harassment and sexual violence is compliant going forward. Specifically, SMU is obligated to amend its Title IX policy by providing time frames for the appeal process, ensuring that the parties understand that if they first choose an informal process (like mediation) they can change to a formal process at any time, and to protect the parties from having evidence of past relationships come up in a hearing. Also, SMU has to publish the Title IX Coordinator's contact information.

When the agency reviewed SMU's files on sexual harassment/sexual violence complaints it received in the recent past, it found many of them were incomplete and did not contain documentation sufficient to demonstrate that whether SMU had satisfied its obligation to provide a prompt and equitable response. Accordingly, OCR required SMU to review sexual harassment and sexual violence complaints it has received in the last two years and self-evaluate Title IX compliance in those cases. The university is required to "take action" to address any problems that it finds.

Last, it must reimburse the student who reported the sexual assault for his educational expenses for the semester affected by the incident and for his counseling expenses to date. 

While OCR has over ninety investigations still pending into alleged Title IX violations regarding universities' responses to sexual harassment and sexual violence, it has resolved a handful of them this year, including Ohio State, Princeton, and Tufts in addition to SMU.

Tuesday, December 09, 2014

Triathlon becomes an emerging sport

Triathlon was approved earlier this year as the latest sport be added to the NCAA's list of emerging sports and it will begin its trial period in fall 2015. It had strong support from schools very interested in adding the program and was also bolstered by the existence of club teams already in existence.

As a reminder, the list of emerging sports is meant to grow the participation opportunities for female students. Emerging sports are listed as NCAA-approved, and thus can be counted towards Title IX calculations. The sport is given a period (10 years) in which to grow into championship status. Forty schools must implement the sport for this to happen (28 for DIII).

Some sports have been more successful than others in gaining championship status, but the process seems to assist at least in the process of figuring out which sports are viable. Two caveats, though.

One: as has been noted repeatedly in the research about women's participation in sports in the Title IX era, the addition of sports has mostly benefited white, middle class women. I don't see triathlon as changing that dynamic at all given the demographics of those who participate in the sport at the recreational and elite levels. 

Two: the emerging sport may not make it to championship status because it does not have enough promotion by a national governing body or other interested parties. In other words, it may fail because of lack of information, not necessarily interest.

USA Triathlon is addressing the second issue (and perhaps, by extension, the first?) by putting money into programs that begin triathlon programs. The group makes so much money off of adult participants that is pushing some of these funds into college programs via $2.6 million in grants. Interested schools will fill out an application. USA Triathlon will award 20 grants in total among all three divisions. 20 grants among schools in all three NCAA divisions. Division I teams will be eligible for up to $140,000 over four seasons. Division II and III schools, up to $70,000.

It is not a large amount of money, but it could provide some incentives to schools interested in trying out the sport. 

Monday, December 08, 2014

Bullied cheerleader commits suicide

A tragedy last week in California when a 12-year old boy killed himself after experiencing repeated bullying because of his participation on the cheerleading team.

His parents had gone to the school on multiple occasions to report the bullying and recently took him out of school  to begin homeschooling. He was frequently referred to as gay, though friends say he rarely discussed the bullying and kept his feelings to himself.

Given that the school, in Folsom, has acknowledged that the parents did indeed bring the bullying to their attention, there seems to be some admitted culpability. Lawsuit? Not that it would bring back Ronin Shimizu or offer much solace to his family and friends; but it seems that schools are not receiving the message that they need to address and take action when bullying occurs.

Sunday, December 07, 2014

MN trans policy passes

The controversial policy governing the participation of transgender athletes proposed by the Minnesota State High School League back in September has finally passed. Despite the vocal opposition by conservative groups that ran two offensive ads in anticipation of the votes, the policy passed easily 18 for, 1 against, 1 abstention.

Despite my concerns that the inflammatory ads would increase opposition to the policy and pressure the MSHSL to further revise or again postpone a vote, this did not happen. Though the standing-room only crowd that was comprised of supporters and opponents does suggest that the issue gained far more publicity than many other policies have. (Minnesota is the 33rd state to implement a policy on the participation of transgender students in sports.)

There are many issues, though, that remain. One, which I wrote about the other day, is about how individual schools will determine the use of locker rooms. A second is about the exemption of private, religious schools from the policy. Though this exemption is not surprising, it raises issues similar to ones we have seen regarding these schools and how their prescriptions on gender affect student athletes--especially those who are not in the school. For example, there have been cases of religious schools refusing to compete against public school football teams that have girls on the team. This forces the public school to take some kind of stand whether that means forgoing a game or compelling the female student(s) to sit the game out for the sake of the team. I would not be surprised to see something similar arise when/if a religious school becomes aware that a transgender student is on the team. This also leads back to the issue of maintaining the privacy of students, which I still see as being very difficult under the conditions of this policy.

Finally, I was quite surprised to read that the policy only addresses transgirls' participation on girls' teams because there is a state policy that already states that girls can participate on boys' teams. This misses the point entirely and actually affirms the basic premise that the Child Protection League Action put forth in their ads--that these students aren't real boys/girls. The Minnesota policy should have applied to all transgender students and included protections for everyone. What does it mean that transboys are not included in this policy? Will there be no attempts at privacy protections for them? Transgirls are not real boys dressed up as girls. Transboys are not real girls trying to be boys. I am unsure about how many people in Minnesota really understand what transgender means.

I am going to close with a link to an interview with transgender teen Jazz Jennings. I first heard abut Jazz when she was one of several children featured on a 20/20 episode about transgender children. At the time she was the one of the youngest cases of transgender identity. Jazz, who does not live in Minnesota, is now in her teens and, because of a transgender policy in her state, has been allowed to play sports in accordance with her gender identity. But Jazz faced discrimination as a youth soccer player. She was not allowed to play in games with girls and tried playing with boys but did not enjoy the experience. For a couple of years, before US Soccer Federation developed a transinclusive policy, she practiced with girls and sat out the games. Jazz cites former basketball player Kye Allums, as a role model. The two have met several times.

Despite a state policy that allows Jazz to play in accordance with her confirmed gender identity, she said that she still faces blatant discrimination. She continues to receive support from her family, friends, and coaches. I think that this is important to remember. Discrimination does not evaporate just because policies exist. Given the controversy over the Minnesota policy and the fact that many high schools are reluctantly supporting it, everyone should remain diligent that transgender students are able to participate.

Saturday, December 06, 2014

Some Thoughts about UVA, Rolling Stone, and Title IX

Yesterday Rolling Stone issued a statement that essentially retracts its November 19 story about a fraternity-organized gang rape of a student named Jackie at the University of Virginia.  We know now that the gang rape could not have, for logistical reasons, happened the way Jackie said or involved the people that she said were involved.  Rolling Stone admits that it should have vetted these basic facts before publishing the story. In not doing so, the magazine has not only cast unwarranted negative attention on the fraternity in question and on UVA.  Additionally, the magazine has set back efforts to address the very real problem of sexual assault on university and college campuses.    

One of those negative consequences is the threat that the retraction of high profile story about campus sexual assault will fuel a stereotype (myth) that lying about rape is a thing women do.  Yet, the fact that Jackie's story has "discrepancies" (as Rolling Stone called them) does not necessarily mean she was maliciously lying; and it certainly does not mean that other women who report sexual assault are lying. Certainly, the negative attention women receive for reporting sexual assault casts doubts on the possibility that women lie for self-serving goals. Moreover, there are other plausible explanations for the inaccuracies in Jackie's story.  As Hannah Rosin suggested in Slate, it is possible Jackie is in fact the victim of sexual assault, the trauma of which is clouding the details in her memory.  Or perhaps changing details about the story consciously or unconsciously makes her feel safer from the threat of retaliation. These possibilities, that actually speak to the need to support victims rather than discount them, are overlooked if we jump to the conclusion that Jackie lied/women lie about rape.

I am also concerned that the Rolling Stone retraction could be weaponized as an argument against Title IX. This would be truly unfortunate, as there is nothing about this story that warrants changing the requirements under law that college campuses respond promptly and equitably to reports of sexual assault. A Title IX-compliant disciplinary process would have revealed the "discrepancies" that came up in the re-reporting of the original Rolling Stone story and would not have sanctioned the accused individual (called "Drew" in the story) or his fraternity. Jackie's story would not have satisfied the preponderance of evidence standard that the Department of Education requires under Title IX. So this story does not support an argument  that we need to impose extra procedural protections for those accused of rape.

Moreover, if we accept the possibility that Jackie was not maliciously lying but was struggling with accuracy as a result of trauma or fear, that too speaks to the importance of a Title IX-compliant disciplinary process. If students trust the system, they will feel safe and supported in reporting assault right away, when details are fresh and can more easily be accurately conveyed.  Prompt reporting also gives the university the opportunity to provide mental help support that could perhaps prevent the memory-clouding effects of trauma.  And given that a Title IX-compliant response also affords the victim protection from retaliation, such reporting could also mitigate the role fear might play in accessing the truth.

For all we know, if Jackie had access to a robust, trustworthy, equitable disciplinary process, she might have reported her assault right away to supportive and truth-seeking campus officials, rather than to a reporter two years later. The university's disciplinary response would have been focused in the right individual or individuals, rather than on those who were apparently not involved.  For these reasons, a Title IX-compliant process should appeal to those worried sexual assault and those worried about the possibility of false accusations.

It would be all too easy for campus officials, government officials, victims and others to use this story as an excuse to disregard victims or roll back the requirements of Title IX.  Those who support sexual assault victims and Title IX have to acknowledge that threat and confront it in their advocacy. 

Thursday, December 04, 2014

Another anti-trans ad in Minnesota

The Minnesota State High School League meets tonight to discuss their policy for the inclusion of transgender students in sports. And earlier this week, the Minnesota non-profit Child Protection League Action went back in transphobic action with a second full-page ad published by the Minneapolis Star Tribune.

And this one has garnered far more attention than the first, making the rounds on Twitter and Facebook and generating many calls and emails to the Tribune, which is being chastised for running this second ad. (The Tribune met with people concerned about the content and message of the first ad but seems not to have taken much from it. The newspaper itself is coming under attack for printing the second ad. There are petitions out for the paper to issue an apology.)

The ad include a picture of a seemingly despondent female softball player and the copy of the ad reads as follows:
The ends of girls' sports?
Her dreams of a scholarship shattered, your daughter just lost her position on an all-girls team to a male...and now she may have to shower with him.
Are you willing to let that happen?

The ad also includes contact information for the leaders of MSHSL so a reader can express the outrage CPLA assumes readers will have.

Similar themes as the last ad (predatory males taken sexual advantage of female athletes, the shower as fraught space, and the complete ignorance of what transgender means) and now the added fear mongering: transgender women (which the CPLA refers to as men) will ruin women's sports.

I could dissect all the problems with the rhetoric, but I feel that it is an exercise in frustration to fight the logic of such a group. (Plus I kind of did it the other day.) My concern is more about the ad's effects. I have never heard of such vehement, hateful opposition to a high school policy that attempts to be inclusive. I believe this policy would have passed back in September, without revision and little fanfare but for the work of this group and their Catholic allies.

Now there is an even more problematic policy--one that is still in danger of not passing--based on hormones and other medical interventions and testimony of health professionals (though I have read elsewhere that all that is required is the confirmation of a parent).

"A female-to-male transgender student who has started hormone treatment can only play on male teams. One who hasn’t can play on either team. A male-to-female student must provide evidence of testosterone suppression therapy. The shower policy requires school districts (when possible) to provide private shower and changing facilities to any student athlete who requests them. It also bars school districts from revealing that a student athlete is a transgender person.”

The reliance on hormones as a measure of gender reveals the restrictive nature of the policy and puts it more in line with other restrictive policies that exist at higher levels of competition including the NCAA recommendations and the IOC's Stockholm Consensus. It does not follow the trend in policies by other high school athletic associations.

Finally, the idea that transgender students will be kept anonymous is highly suspect. Because the policy allows schools to decide how to handle the issue of showers and locker rooms, it is difficult to understand how privacy could be maintained when one student is singled out and asked to use a private bathroom facility at his/her own school or during an away contest. This aspect of policy is quite worrisome and, as I said, would seem to contradict the desire for students to be able to maintain control information about their identity.

A curious aside: the picture of the softball-playing young woman used in the ad is is lifted from a novel about lesbian teenagers. One: oh, the irony. Two, copyright violation?

I assume an update about what happened at the meeting will be forthcoming.

Wednesday, December 03, 2014

Swarthmore Litigation Resolves as College Vacates Disciplinary Committee's Findings Against Student

Earlier this year, we blogged about a male student's lawsuit against Swarthmore College, alleging bias in the college disciplinary proceeding that found him responsible for sexual assault and lead to his expulsion.  Swarthmore had vigorously defended the lawsuit until a surprising turn of events this week, when the college announced that it had vacated the findings against the student, explaining that "additional information became available which both parties believe raises questions about the impartiality of the college judiciary committee panel that heard [the plaintiff’s] case, which "raises sufficient questions about the fairness of the hearing to warrant vacating the panel’s findings and sanctions." The student and Swarthmore then filed a joint motion to dismiss the student's case against the college, which the judge granted.

Though the college has vacating the findings of the proceeding that has occurred, it did not agree to automatically reinstate the student. Yet while the student would have to undergo another hearing before being eligible to return to Swarthmore, such a hearing is not expected to occur as the student has enrolled elsewhere.

The Swarthmore case is one of a number recent cases in which male students disciplined for sexual assault have sued their universities alleging bias and/or procedural violations. (Another such case, this one against the University of Colorado, was reported last week.)

Tuesday, December 02, 2014

New Guidance from Department of Education Reins In Single-Sex Classes

Yesterday the Department of Education released new guidance clarifying the extent to which Title IX permits public elementary and secondary schools to offer single-sex classes and extracurricular activities. In 2006, after Congress passed the No Child Left Behind Act, the agency promulgated regulations that attempted to reconcile the new law's permissive stance on single-sex education with Title IX's prohibition on sex discrimination.  While Title IX regulations already permitted schools to offer single-sex classes in physical education and human sexuality, the 2006 regulations authorized additional single-sex K-12 classes (nonvocational) when the single-sex nature of the class is "substantially related" to achieving one of two "important objectives:" (1) providing a diverse array of educational opportunities for students overall; or (2) meeting the educational needs of individual students. In addition, the regulations require that such single-sex classes be implemented in an evenhanded manner, offered on a voluntary basis, be paired with a substantially equal coed class in the same subject, and be subject to continued monitoring for effectiveness.

As many as 750 public schools segregated some classes and activities by sex in the wake of these new regulations, and there are at least as many schools that are entirely single-sex.  Many of the school districts that have implemented single-sex classes have provoked litigation (or threat of litigation) for exceeding the scope of the Title IX regulations and other laws like the Equal Protection Clause. The Department's new "Q&A" style document appears to be aimed at promoting compliance by raising awareness and offering clarification as to exactly what the regulations permit with regards to single-sex classes. (Single-sex  schools are not covered by the new guidance document because they are subject to a different regulations).

Here are some highlights from the guidance:
  • The school's "important objective" for single-sex classes must be identified prior to implementation; the agency will not accept a rationalization offered after the fact.  If the objective is not in writing, a school district may have difficulty proving to the Department of Education that it satisfied this requirement in the event of a compliance review.  
  • The "diversity array of opportunities" objective cannot be satisfied if the school's single-sex offering are the only thing that creates diversity in the curriculum. On the other hand, if -- for example -- a school offers a variety of electives, coop and externship opportunities, a STEM track, and/or the option to take classes at another school, adding single-sex classes may be related to the objective of offering a diverse curriculum. 
  • The "meeting individual students needs" objective requires schools to identify a demonstrated educational need (or possibly a social need) to justify separating classes or activities by sex.  For example, if a school finds that boys at a certain grade are scoring lower on a state assessment text in a particular area, it could justify a single-sex class option as an intervention aimed at addressing that need. 
  • The school must rely on evidence that the single-sex nature of the class will promote the identified objective.  For example, a school like the one previously mentioned could rely on evidence form a comparitor school or from published research findings that separating boys helped raised test scores in a particular area.  
  • However, such evidence may not include "overbroad generalizations about the talents, capacities, and preferences of either sex," including claims that a particular teaching method works well for most members of a particular sex.  This clarification is important because it forecloses many examples we have read about, in which schools attempt to justify segregation based on claims that boys and girls in general respond differently to things like the level of classroom activity, the sex of the teacher, the content of teaching examples, the structure of assignments, or environmental factors like the noise levels, lighting, and temperature of the classroom. As the guidance recognizes, these claims, even if reliable, only justify separating students based on their preferences regarding the variable in question. They do not justify using sex as a rough proxy for that variable. For example, a school may believe that girls in general learn better in warmer environments. This does not justify offering a separate class for girls, though a school may offering two different classrooms at different temperatures and allowing students of either sex to choose the warmer or the cooler of the two based on their comfort level. 
Based on recent past examples of Department of Education guidance under Title IX, I predict that the release of this guidance document is the first step towards stronger Title IX enforcement to rein in unlawful single-sex classes. By clarifying the narrowness of circumstances in which such classes are permitted, as well as the requirements for implementation, the Department makes it easier for teachers, parents, students, and other stakeholders to identify those classes that do not comply with Title IX and to file complaints accordingly that could prompt investigation and enforcement proceedings.  It also signals that the Department is turning its attention to this issue, and may suggest that its next step is to initiate compliance reviews of its own.