Hope and concern in West Virginia ruling

 I attended a rally/vigil last week focused on LGBTQ+ visibility and one of the brilliant speakers spoke to the difficulty of maintaining/having hope among those who embody those identities, (and those who are allied with them). The idea that "surely things cannot get worse" she said, has been replaced with a resignation that when something worse happens, we know it will not be the last of the worst things or the worst of what is to come. 

The tragic death of teenager Nex Benedict, whom we remembered at that vigil, will not be the last ever, the last this year, nor the last this spring. Queer children are in such a vulnerable position all over the country. And those with additional minoritized identities, like Nex who was Indigenous, are extremely vulnerable when they do not have the privileges that comes with whiteness, or middle-class standing, or normative ability (physical and/or neurological). 

So I am wary to ascribe the word "hope" to the recent overturning, by a federal appeals court,  of West Virginia's law banning trans girls and women from school-sponsored sports. It is certainly good news amidst the bad (the longer list of states that continue to be allowed to engage in discrimination, the NAIA's recent banning of transwomen from intercollegiate sports at its member schools, and Ohio's impending ban). 

In addition to the almost certain appeal of the ruling is the fact that the child at the center of the case is someone who could be characterized as a near-ideal plaintiff. She is a young teen who has been public about her identity since the age of 8. She has a birth certificate that states she is female. She is on puberty blockers and estrogen. Being an athlete seems to be a key part of her personhood and she has been playing on girls' teams since her social transition. She is feminine, blond, and white. 

But my hope that this is a turning point, or at least a sign of better things to come, quickly dissipates when I admit to myself that if almost any single one of the factors above was different, this case could have had a different outcome. What if the plaintiff was not engaged in medical transition (remember some states have now banned that), what if she had only recently socially transitioned or never before played on a girls' team? What if she was a Black girl? (A look at the responses to former Connecticut high school track star Andraya Yearwood demonstrates how racism constructs beliefs about gender and femininity in ways that demonize and do violence to Black trans girls and women.) 

To be clear: I am very happy the decision went in the plaintiff's favor and that she will be able to continue to participate on the girls' track team. I hope it makes space for those who might not be the "ideal" because of how they present or how they are choosing to embody their identities. 

But, right now, that is about all the hope I can muster. 

Settlement Ends Single-Sex Classes in Wood County, West VIrginia

A federal court in West Virginia recently approved a consent decree between the ACLU and the Wood County Board of Education, which prohibits the Board from reinstituting single-sex education in core classes at Van Devender Middle School.  Last summer, the ACLU filed a lawsuit on behalf of parents whose children were assigned to single sex classes.  A federal court granted the ACLU's preliminary injunction after determining it was likely they would prevail in the argument that the program violates the requirements under Title IX that single sex education be "completely voluntary."  Wood County's was not, because parents had to opt their children out, rather than opt in.  The court's opinion also emphasized that single-sex public education must be able to withstand heightened scrutiny under the Equal Protection Clause.  It cannot be rooted in stereotypes and pseudoscience, as Van Devender's program appears to have been. 

This decision paved the way for the eventual settlement, approved Monday, that prohibits the Board from instituting single-sex classes for two years.  For the following three years after that, the Board can only implement single-sex classes after it provides notice to the plaintiffs and receives approval from the court, a valuable prophylactic against the Board's future implementation of another mandatory, broad, and poorly justified single-sex education program.

Federal Court Enjoins Nonvoluntary Single-Sex Classes in West Virginia

A federal district court in West Virginia recently ordered an injunction against single-sex classes at Van Devender Middle School in Parkersburg, West Virginia (for an earlier post about the lawsuit, filed by the ACLU on behalf of a parent, see here).  The court determined that the program at Van Deventer violated the requirement in Title IX's regulations that single-sex programs be "completely voluntary."  This requirement is not satisfied, the court said, when parents can opt out of a program that presumes to otherwise place their child in segregated classes.  Rather, schools must allow parents must affirmatively opt in to such programs to satisfy this provision of the regulations. The court explained:

[B]ecause single-sex classes are, by their very nature, a gender classification, it makes perfect sense to require the parent or guardian's clear and affirmative assent. While a failure to opt out may be a legal substitute for agreement in some other areas of the law, such as membership in class actions, presuming that parents or guardians have enrolled their child in a single-sex class completely voluntarily because they failed to opt out would undermine the purpose of Title IX to prevent discrimination based on gender. 

The court also noted that the fact that parents were not notified of the opt-out until a few days before the beginning of the school year also suggests that parents did not have a real opportunity to volunteer for single-sex classes.

For now the court did not reach the question, raised in the ACLU's complaint, of whether even a voluntary program of single-sex education such Van Devender's would be unlawful under the Equal Protection Clause.  If litigation continues, however, the court would likely address that issue. 

Decision: Doe v. Wood County Bd. of Educ., 2012 WL 3731518 (S.D. W. Va. Aug. 29, 2012).

ACLU Challenges Single Sex Classes in West Virginia Schools

Yesterday, the ACLU filed a lawsuit against Wood County Board of Education in West Virginia, challenging its sex-segregated education at Van Devender Middle School.  The lead plaintiff is a parent whose children are adversely affected by the gender stereotyping at that school. According to the complaint, classrooms and teaching methods reflect gross generalizations of questionable validity, such as that boys learn best in cool, bright rooms where they can move around.  The girls' classrooms at Van Devender, in contrast, are warm and dimly lit, and students must remain seated and always inside during instructional periods, compared to the boys who sometimes have class outside.  For one of the plaintiff's daughters, who has attention deficit disorder, the stereotypes about girls' quiet learning styles are hard to endure. Another is visually impaired and has greater difficulty seeing in the dim lighting of the girls' classroom.

The ACLU's legal argument is that the segregated classes at Van Devender violate the Constitution's Equal Protection Clause, which requires sex-based classifications to be substantially related to an exceedingly persuasive government objective and not rooted in broad generalizations.  It also argues that the school violates Title IX and its implementing regulations.  The Department of Education's regulations require that single-sex programs must be voluntary and offer an equivalent co-ed alternative, which Wood County does not, and that they must either be intended to "improve educational achievement" through "diverse educational opportunities" or be motivated by "particular, identified educational needs."  The ACLU argues that the pseudoscience underlying Wood County Board of Education's pedagogical choices do not satisfy either test.  

The ACLU seeks an injunction against the continuation of single-sex classes at Van Devender.

Settlement Ends Litigation Over WVU Tech Softball Facilities

A federal court in West Virginia dismissed a Title IX case against the University of West Virginia Institute of Technology after it agreed to improve facilities for its women's softball team. The lawsuit was filed in 2008 by two softball players after WVU Tech ostensibly reneged on promised improvements. The parties had been trying to settle for a while.

According to the judge's decision endorsing the consent decree, WVU Tech hired a full-time head coach for the team, and has entered into an agreement with the local school district to use softball facilities at a nearby high school for the softball team's games and practices. Meanwhile, the university will pursue a long-term solution that provides for the renovation of the on-campus facility. Based on an initial feasibility study that was submitted to the court, the judge found that the "proposed renovations would afford the women's softball team suitable facilities."

The court maintains jurisdiction over the consent decree to ensure compliance.

Settlement Scuttled in WVU Tech Case

An odd development in the lawsuit by the WVU Tech softball players' Title IX case we blogged about in February: the players' lawyer has asked the judge to let him off the case because the players are refusing to sign an agreement that the lawyer believes reflects a settlement both sides had agreed to.

The players, Alexis Cox and Teri Harrison, initially filed a complaint with OCR about inequitable athletic facilities at WVU Tech, which they dropped after the university agreed to make certain upgrades and improvements to the softball field. The players later sued when those upgrades did not materialize. In June, both sides agreed to a mediation. According to Michael Ranson, the players' lawyer, during this process WVU Tech "agreed to even more improvements and upgrades to the women's softball and facilities than previously memorialized" in exchange for Harrison and Cox dropping the suit. But when the agreement was memorialized in writing, the players "surprisingly refused" to sign the document, according to WVU Tech's counsel.

No explanation for the players' decision has been offered, but Ranson is seeking a hearing so that the judge can determine whether an agreement between the parties in fact occurred over the course of the mediation. He has asked that Harrison and Cox attend the hearing and voice their objections to the settlement, so perhaps we will find out their side then.

This is pure speculation, but I wonder if Harrison and Cox had second thoughts about the settlement because they had been on the receiving end of WVU Tech's promises before -- maybe on further reflection they were not satisfied with the (alleged) settlement because it contains no automatic penalty for failing to satisfy the timeline for the improvements. Another possibility is that the players realized that agreeing to drop the entire lawsuit in exchange for facility improvements would prohibit them from continuing to press their claim that WVU Tech retaliated against the team and its former coach after they filed their complaint with OCR.

Student Note Advocates for Title IX Compliance Without Cutting Men's Teams

In the current issue of the West Virginia Law Review, law student Ryan Smith argues that public universities in West Virginia can comply with Title IX without eliminating men's sports like track and field. I think the fact that this approach strikes students as novel shows just how pervasive the assumption that Title IX is a mandate to do otherwise.

Citation: Ryan T. Smith, Bulls Eye: How Public Universities in West Virginia Can Creatively Comply With Title IX Without the Targeted Elimination of Men's Sports Teams, 110 W.Va. L. Rev. 1373 (2008).

West Virginia Parents Sue for Gender Equity

Parents in Mercer County, West Virginia have filed a lawsuit in federal district court against the Board of Education, alleging that inferior athletic opportunities for female students at Princeton Senior High School violate Title IX. The Bluefield Daily Telegraph reports that the complaint cites discrimination in the distribution of equipment and facilities like pitching machines and batting cages, uniforms, travel, access to coaching staff, and "other specific complaints." One example noted in the article is that boys' uniforms -- and in the case of football, even shoes -- are provided by the school, but softball and volleyball players must pay or fundraise for all or some of their gear -- including the tape to mark the volleyball court.