Monday, May 30, 2016

Transgender cases updates

University of North Carolina is flip-flopping on HB2. Initially, UNC president, Margaret Spellings (former Secretary of Education) announced that the state's flagship university would indeed enforce HB2's bathroom and locker room rules (requiring people to use bathrooms based on the sex stated on their birth certificates). This was despite Spelling's own experience with Title IX and the lawsuits between the federal government and the state of North Carolina. Spellings's initial stance was to follow the law until courts said otherwise.

But now Spellings has said UNC will NOT be enforcing HB2 choosing the same rationale: to wait until the legal wranglings are over.  She also promised to investigate any complaints from trans students, faculty, or staff who may run into problems. No complaints thus far.

In Texas, which is also suing the Obama administration for its Title IX clarification regarding trans rights, the University Interscholastic League, the governance body which controls athletics in public schools, has put into the rules that students may only compete in sports in accordance with the sex listed on their birth certificates. The spokesperson for the organization said this has always been the practice, they just wanted to put it in writing. Equality Texas will fight the new-not-new rule.

In older news...

A potential bill barring transgender students from using bathrooms and other marked single-sex facilities according to their lived gender is drawing concern from the governor of Tennessee. The bill being considered by the legislature is similar to the one in Texas and states that "public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.” There is no mention of transgender students, but the bill is clearly aimed at these individuals.

But the governor is worried--and rightly so--that passing the law would mean the public schools would lose federal funding. As we have noted before, the Obama administration as well as the courts, have affirmed that Title IX protects transgender students and provides them the right to use bathrooms and locker rooms in their lived gender.

A nearly identical bill in South Dakota, passed the by state's legislature earlier this year, was vetoed by the governor in early March. The Republican governor (the legislature is also Republican controlled) said the bill was too sweeping and that these issues, when they arise--which he feels is rarely, are best dealt with by local officials. This is a bad approach. Yes, the law was also bad, because it conflicts with federal regulations, but leaving things to local officials is not a good idea either. It leaves trans students unprotected and opens up local school districts to lawsuits.

In response to the increase in the number of Title IX exemptions being sought by private religious colleges and universities, LBGT rights groups have put pressure on the NCAA to prevent schools who received these exemptions (which allow them to discriminate against transgender students) from being member schools. The petition which includes about 80 groups and is being lead by Campus Ally did not sway the NCAA which declined to take the recommended actions.

In a far more progressive consideration of these issues, the Albuquerque (New Mexico) Public Schools board is considering a proposal that allows transgender students to use bathrooms and locker rooms in keeping with their gender identity. There has been some concern from board members about children being exposed to the body parts of the "opposite sex" but these were seemingly quickly shut down by those who noted that any type of indecent exposure in these spaces is illegal and others who likened the discriminatory discourse against trans people to the rationale white people have used in the past against people of color.

The proposal also includes the following provisions:
  • The district will provide age-appropriate instruction to all students on gender-based discrimination.
  • Students will be addressed by the name and pronoun that aligns with their gender identity.
  •  Students are permitted to participate in physical education classes and intramural sports consistent with their gender identity.
  • The student and parents may request a support team meeting to ensure proper access to all programs and activities, as well as protection from gender-based discrimination.
  • Students have the right to dress in accordance with their gender identity within the constraints of the dress code.

Friday, May 27, 2016

What happened at Baylor

News broke yesterday, after several days of rumors about who was being fired and when, that football coach Art Briles would no longer be coaching the men's football team at Baylor University and that Ken Starr had been relieved of his duties as university president, had been "demoted" to chancellor,  and remains on faculty at the law school. The athletic director has been placed on probation. This is all in the wake of the university-commissioned report to look into the accusations that the school had mishandled many reports of sexual assault committed by male students. Most of the accusations were against football players, some of whom had actually been taken to criminal court and are serving jail time, but have never been reprimanded by the school.

The school hired an outside law firm to conduct the investigation last fall when the years of cover-ups became more public due to an ESPN Outside the Lines report and the filing of a lawsuit by several female victims. It found, just like OTL and other media outlets had found, a large cover-up of the assaults.

So here are my thoughts, in no particular order.  I focus on the culture at Baylor that created this situation and less on the legal and procedural aspects of this scandal.

1. Ken Starr being demoted to Chancellor is not enough. Starr's history certainly suggests that he is capable of investigating sexual relationships and he admitted publicly that he failed in his duties as president. He even apologized to victims. This does not mean he deserves a leadership position. In fact, keeping him as a chancellor calls into question Baylor's commitment to changing the culture on their campus. Starr was the guy who helped create that culture.

2. Several news outlets have posed the question: why haven't things changed yet and/or will this be the watershed moment? I do not predict watershed moments anymore or cite current scandals as turning points, because I have been so wrong before. I swore that FSU/Winston was going to be that turning point for reasons I will not detail here. I was confident--and wrong. Baylor is taking responsibility (after a lot of silence), but it remains to be seen how they will fare if/when the NCAA comes to investigate or in the court of public opinion, or in real court. (See #6) Baylor is not the only school under investigation or facing a lawsuit. This news has not drawn Tennessee administrators out of their offices to admit wrongdoing or resulted in anyone being fired today at any of the other schools under investigation.

The better question is why hasn't there been a turning point already? Why wasn't FSU that moment? Or Oregon? Or Colorado? Or New Mexico? Or any of the other many, many cases of student athletes committing sexual assault?

3. Dear members of the board of regents who are so shocked at the findings of the report: You are responsible for this too. No one really knows what goes on behind closed doors or at alumni/donor functions where coaches and trustees and presidents mingle and attempt to raise money for their team school. But trustees like winning football teams because they think they brings in dollars and they make that known to university leaders who make it known to coaches. The looking the other away--or the pushing away--when problems that impede this arrangement arise may be a little more deliberate within athletic departments than in the trustee board room, but trustees would be naive to think that the desire they exude for a successful athletics program does not have consequences. Consequences that cannot be entirely placed on the moral failings (in addition to the illegalities) of those whose contracts they approve. So more faire, less laissez (sorry francophiles).

4. Dear ESPN and other sport media outlets: Perhaps we should dwell on this story a little bit longer, engage in a little more introspection. Maybe about the ways in which sports media cover sexual assault and elevate college students who play football to celebrity status? It's too soon to furrow the brow and rub the chin wondering who will be taking over for Briles and lamenting about how Baylor football was just beginning to get good again. Also, don't forget that the rebuilding was necessary because of a 2003 scandal in which a basketball player killed a teammate and the subsequent revelations about the dysfunctional athletic department.    

5. The comparisons to Penn State have been interesting and go back to the questions about why things have not changed. How could Baylor happen in a post-Penn State world?

Because Penn State was about a grown white man preying on young, vulnerable boys. People are far more disgusted and appalled by this version of a sexual predator (because of age and homosexual acts) than they are by college-age men raping college-age women.

Because there is a hierarchy and male-on-male pedophilia outranks--by far--men raping women in American culture. Maintenance of this hierarchy involves downplaying the latter by 1) not calling it rape and 2) vilifying victims. According to the report, Baylor engaged in the latter itself when it retaliated against a victim who came forward.

Because Penn State was seen as an anomaly and not as a cost of the culture of American intercollegiate sports. That is what these two cases have in common: the cover-ups and denials in order to maintain a successful athletics program. But that commonality is not something most of American society chooses to see, and that is why Penn State is not a watershed moment and arguably why there has been not been a turning point. 

6. Breaking my own rule about not commenting on the legal side of this scandal: I imagine that a settlement is forthcoming in the lawsuit brought by women who were victims of assault. The question is whether the terms of that settlement will be made public. If Baylor really is all about contrition and change, then they will not place a gag order on those involved.

Monday, May 16, 2016

Some Thoughts on Friday's Dear Colleague Letter Re: Transgender Students

On Friday the Department of Education and the Department of Justice jointly released a significant guidance document in the form of a "Dear Colleague" letter that addresses schools' responsibilities under Title IX to avoid discrimination against transgender students. The central premise of the guidance letter is, "The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX....This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." Thus, transgender students must be permitted to access bathrooms, locker rooms, athletic opportunities, single-sex classes, single-sex schools, or any other sex-specific activity or requirement according to their gender identity even if their school records or other documentations say otherwise. Schools must also protect transgender students from harassment and respect their preferred names and pronouns.

Here are some of my thoughts about the Dear Colleague Letter:

The effect of guidance. A guidance document like the Dear Colleague Letter does not create new legal requirements. In fact, if you have been following the position that the Department of Education has taken in recent enforcement actions, you'll find the content of this guidance document to be familiar.  The effect of Dear Colleague Letters is to raise awareness about compliance obligations so that schools can proactively adjust their conduct to avoid such enforcement actions.

The Letter's scope. The Letter is directed at "schools" without specifying whether it meant to include or exclude institutions of higher education. In my mind, there is no legal basis for having a different definition of sex discrimination apply to K-12 than to higher education, so it is arguable that everything in the Letter applies to higher education with equal force.  Yet the Departments' failure to expressly address colleges and universities may create arguments to the contrary as well. This might be particularly controversial in the aspect of athletics, where prevailing NCAA policy imposes hormone-based requirements on transgender athletes wishing to compete according to their gender identities (though the Letter appears to endorse the policy in a footnote).

Federal government overreach? On the radio this morning I heard some state-level politicians complaining that the federal government lacks the right to regulate local schools in this manner. Indeed, the Constitution prohibits the federal government from directly regulating matters of such state/local concern, but when the federal government spends its own money, it may impose conditions on those who receive such funds. A local school district that doesn't want to comply with Title IX as interpreted by the Dear Colleague Letter is not required to do so.  All it has to do is forgo federal funding, and it has no obligation under Title IX whatsoever. On the other hand, if it agrees to accept the benefits of federal funding, it must accept the responsibilities that come with it.

Confirmation of identity. According to the Letter, all that is required to confirm a transgender student's gender identity is notification from a parent. It is appropriate that the Departments expressly denounce any specific medical diagnosis or intervention as a prerequisite for a schools' obligation to recognize the student's gender identity.  Unfortunately, however, a "parental notification" standard will leave some transgender students (those without parental support) without the right to access facilities and programs according to their gender identities -- though I understand why the Departments would not want to force schools to take sides within a divided family. Hopefully the government's express validation of transgender students' identities will help nudge society in a similar direction and likely reduce the number of unsupportive parents with time.

What about nonbinary students? A colleague of mine asked me what the Letter means for transgender students who don't identity as either male or female, and I thought I'd post my thoughts on that question here as well. Such "nonbinary" students are not expressly mentioned in the Letter, but it seems clear to me that their rights to be protected from harassment and discrimination in general are the same as transgender students whose gender identity is specifically male or female.  As for single-sex facilities and programs, however, there is not a clear answer.  Presumably such a student would be treated like a member of their birth-assigned sex that is reflected in school records, since that is schools' default mode of operation. But those students would not have access to facilities and programs for the other sex, however, since they cannot claim to have a similar gender identity to the students in that gender category. Theoretically, the Letter could have addressed the rights of nonbinary students by requiring schools to create third category for every program or facility that is segregated by sex, though the Departments likely (and reasonably) considered such an approach infeasible. But the omission of such a requirement doesn't mean schools can't try to accommodate nonbinary students as a matter of "best practice." For one, they could permit such students to use facilities or access programs that they feel most comfortable, whether that be consistent with their birth-assigned sex or the other sex category.  For another, they could eliminate unnecessary and gratuitous sex classifications (color-coded graduation robes is an example that readily comes to mind), since the fewer places in school where sex designations matter, the more inclusive the school environment is to all students regardless of gender identity.

Thursday, May 05, 2016

Throwback Thursday: Cutting women's teams

This is not really a throwback Thursday, but it feels oddly nostalgic to write about Title IX and the cutting of women's sports teams. Not in a good way, of course. Cutting teams is always a difficult process, but it has not been nearly as much of a Title IX issue recently. But as the recent announcement from St Cloud State University (Minnesota) shows us, cutting women's teams is not a thing of the past.

Five members of the women's tennis team at St. Cloud have filed a Title IX lawsuit against their university. The team is one of six that has been cut from the list of varsity intercollegiate sports in an effort to deal with budget shortfalls.

The university currently provides just under 120 more opportunities for men to play sports. The undergraduate student enrollment is nearly 50/50 men/women. This does not automatically mean they have been out of compliance; they could have been expanding opportunities for women or sufficiently meeting the interests and abilities of the female undergraduate population in terms of sports and opportunities provided.

It does mean, however, that with the cuts they must--post cuts--be adhering to prong one, in which the athletic opportunities provided reflects the male/female ratio in the undergraduate population. In other words, next fall there should be equal athletic opportunities for men and women at St. Cloud.

The numbers will surely be in dispute at pre-trial hearings and a trial, if it gets there. Here is what my basic math revealed:
Men are losing, based on the cuts alone, 92 spots (tennis and all track programs), bringing the total opportunities to 226. Women are losing 24 spots (tennis and skiing) bringing their opportunities to 178.

The asterisks on these numbers include the following:
1. As in any of these calculations, the numbers can change. The number of undergraduates enrolled, especially.
2. Specific to this case, the university, when making the announcement two months ago, said it was going to reduce the number of roster spots on 7 teams and increase spots on 6 others. I do not know exactly  where these additions and subtractions will occur or if it will be a zero sum game.

The university has said it will increase the roster for women's track to 90 from 60. The data I was using, though, said women's track was at 73 members, not 60. But if we add 30 to the reduced opportunities, it brings the number for women to 208. Lawyers for the tennis players (one of whom is also representing former Duluth hockey coach Shannon Miller) do not like this solution. They feel the university is using this to count the same athlete as many as three times (cross country, indoor track, outdoor track) and not really increasing opportunities.

Even if this is not legally wrong, I expect the university will have to respond to questions about this plan, and reveal their other plans sooner rather than later, i.e., when they go to court next month to deal with the request for an injunction.
Because, yes, the women have asked for a temporary injunction against the cuts that affect the opportunities for female athletes until the legal issues are resolved. That request will be heard on June 3. They are also seeking class action status.

It is possible that the university's intention to reduce spots on the football and baseball team along with increasing the numbers on the track team will bring them into proportion.The question remains though whether they can so drastically increase the women's track team. We have seen some sketchy roster management around women's track. Even if the lawsuit is not successful because the university has a plan for proportionality, they will certainly be on notice that they have to effectively and legally execute that plan.

One final thought: as I read the articles about the lawsuit I got the impression that these cuts were the proverbial final straw for many female athletes who feel the athletic department has not been treating them equitably. The cuts may have felt like such a tangible and actionable move, and some women are using the opportunity to illustrate the inequities. But even if the university brings itself into compliance with the quantity of opportunities, they may not be providing a similar quality to women. I sense quality is also an issue at St. Cloud. If it is, a complaint filed with OCR might be worth it to address the inequities other female athletes may be experiencing.