- "It's safer to be quiet": Cultures of retaliation~Cultures of sexual violence
- Cost-of-Living Stipends Raise Gender Equity Challenges
- Punishment and reforms for Stanford band
- Federal Court Rejects Title IX's Application to Transgender Restroom Case
- What Winston's drafting means
- OCR's Latest Report to the President, the Secretary of Education, and Congress
- Don't forget to follow the law!
- Court Dismisses Title IX Case of Student Suspended For Sexual Assault
- Student Accused of Sexual Assault Sues Columbia
- OCR Issues Guidance on Title IX Coordinators
- Should Western Kentucky's Women's Swim Team Have Been Suspended?
- Court Dismisses Title IX Count Against Pepperdine
- Utica College Selective Deploys Title IX Excuse
- Another female coach terminated: University of Delaware
- Prom season discrimination
- Court Dismisses Expelled Student's Case Against Vassar
- Expulsion for bathroom use
- DOJ Challenges Discrimination Against Transgender Professor
- Court Dismisses Lawsuit Challenging the Clery Act Amendments
- Sexual Assault Litigation Update
- Bathroom policies that make sense
- Ohio State Hockey Coach Resigns Over Harassment Complaints
- OTL covers young transgender athletes
- "Co-Champions" in Connecticut Raising Title IX Concerns
- Lots happening on women in coaching and leadership
So many voices have created the current level of visibility and activism around campus sexual assault. This week we are hearing them speak about retaliation in light of recent events that reveal the connection between cultures of sexual violence and cultures of retaliation against victims and allies who speak out. Arguably the most visible story this week is out of New York. Columbia University graduation was this past week and Emma Sulkowicz was among the class of 2015. Sulkowicz has been carrying a mattress around campus this past year as part of a performance art piece. She vowed to keep carrying the mattress until Columbia kicked her rapist off campus. They didnt. There is an extensive back story to Sulkowiczs experience which is marked by administrative ineptitude that has never been explained or accounted for. Columbia should be apologizing to Sulkowicz but instead the university president refused to shake her hand* at last Tuesdays Senior Day ceremonies where Sulkowicz, with the help of friends, carried the mattress across stage; the last time she would carry it. Her assailant, Paul Nungesser, also graduated this week. He was on stage a few minutes prior to Sulkowicz. He has filed a lawsuit against the school in relation to Sulkowiczs project/protest. There has been great support for Sulkowicz, and the mattress project has inspired other activists across the country to take up the mattress as a symbol. But there has also been significant retaliation. The university contends that President Bollinger did not slight Sulkowicz--who made a concerted effort to make eye contact and shake his hand--but rather that the mattress was in the way. Given that various administrators worked very hard to keep Sulkowicz from carrying the mattress on stage, I find it hard to believe that the lack of a handshake was really due to the fact that the mattress was blocking such a gesture. Only symbolically! Sulkowicz said she would not participate in the ceremony if she was not allowed to carry the mattress. Because of the attention to her case, this would have been even worse PR for Columbia. Though the recent posters calling Sulkowicz a "Pretty Little Liar" have not been great either. These posters, found around campus, are part of a larger effort to silence and discredit Sulkowicz and all those who would think about reporting their assaults, those who support victims, and even those who participate in investigations (which I will discuss in a moment). This anonymous piece in Jezebel speaks to the culture of retaliation at Columbia. Written by the woman who reported that Nungesser sexually assaulted her--a year before what he has called consensual sex with Sulkowicz, the author details her experiences and why she remains anonymous. She is one of 4 people who report being sexually assaulted by Nungesser. The very visible and violent backlash against Sulkowicz had a silencing effect on this woman--who has only ever commented anonymously about her case--her and most likely other victims. There are so many pieces of this editorial I would like to quote (I recommend reading it all) but the most chilling phrase comes towards the end: "its safer to be quiet." That is certainly what a Stanford undergraduate learned this past semester. (Not a great week for Stanford.) This student is being held responsible--by the masses--for getting the Sigma Alpha Epsilon fraternity kicked off campus. She never reported the behavior she saw on pledge night; behavior that she found offensive and so left after 30 minutes. But she was asked to give a statement as a witness. She was not assaulted and never claimed to be. Somehow fraternity members found out her name and began harassing her. So despite the other factors that contributed to SAEs expulsion, this undergrad is being blamed. And when the harassment started against her specifically, this triggered an additional investigation into the fraternity. It was going to happen with or without her participation and after much thought (given her that her initial participation had gone so badly) she did decide to participate. Her editorial is also startling and speaks to the climate of retaliation on college campuses that is barely (if at all?) being addressed as part of these larger issues. She writes: "My only chance to protect myself was to participate in the same Title IX process that had made me a target in the first place. I knew that any decision I made would affect not just me, but the culture surrounding reporting on campus. I am a victim of harassment and retaliation, and this experience has been among the hardest I have ever had to deal with. I cannot imagine what it must be like for victims of violence and assault. Given the retaliation I faced for merely being thought to have reported harassment, I don’t know if I could face actually reporting a case of assault. And I am not willing to become a cautionary tale, an example of the reasons why people shouldn’t report." These stories, in addition to the ones presented in The Hunting Ground, of women who spoke out all include anecdotes about other victims who come to them for advice because they are too afraid to report. Too afraid of the treatment they will receive by administrators, by law enforcement, and from their peers. This is an integral part of how rape culture is perpetuated and more needs to be done specifically addressing this component.
On August 1, a new NCAA rule will take effect that allows college athletic programs in the five "power" conferences to increase athletic scholarships to cover the full cost of attendance by providing athletes with a stipend to cover living expenses beyond tuition, books, and room. Will these new benefits to college athletes be distributed in compliance with Title IX? If one institutions plans are any indication, its not looking good for gender equity. University of Nevada Las Vegas reports that it is committed to funding stipends for athletes participating in football and mens and womens basketball. That means 98 men will benefit (85 scholarship football players and 13 basketball) compared to only 15 women. The university also reports that the average stipend award (which is not necessarily the same for each player but varies to reflect their own individualized costs) is $4500. Thats amounts to a dollar-figure disparity of about $373,500 in favor of mens athletics at a university that already allocates 59% of its athletic financial aid resources to mens teams. In contrast, some schools plan to award the stipend to full-scholarship athletes in every sport, something that comes closer to equitable since the NCAA has womens volleyball, gymnastics, and tennis (along with football and mens and womens basketball) to be full-scholarship instead of partial-scholarship (i.e., "equivalency") sports. Some schools have also suggested they may award partial stipends to those on partial scholarships. These diverse approaches suggest a need for the NCAA and the power five conferences themselves to ensure that all member institutions are factoring gender equity in to their decision to award stipends, or, alternatively, that the Office for Civil Rights clarify an institutions compliance obligation under Title IX. Such guidance could treat stipends like other athletic financial aid that is regulated by Title IX, and requires the dollar figure amount be proportionate to the breakdown of male or female athletes. Alternatively, given that the stipend amounts are individualized to each athlete taking into account factors other than sex, I think it would also be reasonable to instead require that the _number_ of stipends (comparing full and partial separately) be equitable between the sexes. Either way, however, it seems clear that athletic departments are not going to spontaneously comply with Title IX, and that guidance of some kind is in order.
This week Stanford University announced the results of its investigation into the universitys marching band. At issue was a climate of sexual hostility marked by harassment of members, especially upon initiation. In addition there were violations of hazing and alcohol policies. This has all resulted in a ban on the bands travel to away events next year. They will perform at home events and other unnamed non-athletic events. We had not heard of this situation; it certainly has not made headlines like the OSU band scandal. (Though apparently the band has a reputation and have a history of rude behavior at schools.) The descriptions--admittedly vague--of the incidents suggest common issues among bands (and probably other college groups): alcohol, initiation rituals based on public humiliation, and sexual harassment/assault. What is interesting is the way these problems are framed when the group in question is a college marching band. The Dean of Residential Education commented on the findings and punishment: "The universitys objective is to ensure a safe and harassment-free environment while honoring the bands traditions and its unique, irreverent identity." So band hazing/harassment is because they are quirky? When sports teams do this its about team camaraderie. When fraternities and sororities do it, its about loyalty to the organization. Its all a form of violence. The commonality is that students largely think these things are fine and they are "part of the culture." The band has the option of appealing their partial suspension. A few weeks ago we heard about another problematic culture within a university group: the swim team at Western Kentucky. Their investigation was more explicitly Title IX focused as it looked into numerous accounts of hazing. The punishment at WKU was far more extensive: three fired coaches, a 5-year suspension, and at least one athlete who will face criminal charges. Again, the exact events that occurred within the Stanford marching band and the WKU swim team are unknown and comparing is impossible. However...there was no discussion of adult leadership in the Stanford case. I find this curious. Where were the university employees in all this? There are, of course, numerous cases of hazing within intercollegiate athletics where coaches claim they had no idea what was going on. But that excuse that the non-student adults are really oblivious as to what their charges are up to is not as readily accepted anymore as evidenced in the WKU case and of course in the OSU band case where the director was fired. Hazing and harassment cases call for a greater questioning of the practices of any group culture and also inquiring into how that culture has been created and perpetuated. Did this really happen at Stanford?
Last month, a federal district court in Pennsylvania rejected claims that the University of Pittsburgh violated Title IX when it denied a transgender male student access to mens locker rooms and restrooms on campus. The court rejected the argument that discrimination on the basis of ones transgender status is incorporated into the scope of sex discrimination prohibited by Title IX and instead limited the meaning of sex discrimination to discrimination on the basis of ones biological sex. In reaching this decision, the court primarily relies on _Ulane v. Eastern Airlines_, an employment discrimination from the 1980s in which the Seventh Circuit court of appeals reached a similar conclusion about the scope of Title VII. It also uses a similar mode of reasoning that the Ulane court employed, which was to emphasize that Congress did not have transgender students on its mind when it passed Title IX in the 1970s. Though the court recognized that that definition of sex discrimination has been expanded in one particular way -- to include discrimination on the basis of sex stereotypes -- it concluded that was not the nature of discrimination alleged in this case because the plaintiff, whose natal sex is female, did not experience harassment or discrimination on the basis of his failure to dress in stereotypically feminine clothing. Rather, the nature of the discrimination he faced was being treated differently from other men because he is a transgender man instead of a cisgender man. Even though I think the court was right that this case did not present a sex stereotyping claim, by recognizing that such a claim would have been actionable, the court concedes that cases like _Ulane_ are out of date and an inappropriate foundation on which to bases conclusions about the meaning of sex. If Title IX includes discrimination on the basis of ones gender presentation, as the Supreme Court has itself endorsed, it is not accurate to say that the law only prohibits discrimination on the basis of biological sex. Several federal agencies and (so far only) one federal court have used that reasoning as a starting point for an even broader interpretation of sex discrimination that would have, had the court endorsed it here, provided a remedy for the plaintiff in this case. For example, the EEOC recognized that discriminating against someone because of their transgender gender identity is a form of discrimination because of sex. The Department of Justice and the Department of Educations Office for Civil Rights have endorsed this view as well, as evidence by the fact that they have brought enforcement actions against school districts in support of transgender students challenging their exclusion from sex-specific spaces (see also) and also filed briefs in support of students raising those arguments in court. Additionally, OCRs most recent guidance document about sexual violence also contained the sentence, "Title IX’s sex discrimination prohibition extends to claims of discrimination _based on gender identity_ or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation." Unless or until the administrations more expansive definition of sex discrimination catches on with the judicial branch, educational institutions may have to contend with two standards for Title IX compliance: one that the courts apply in lawsuits brought by individual plaintiffs, and one that the government applies in its own enforcement actions. A school that excludes transgender students from sex-specific activities and facilities that accord with their gender identities may have less to fear from a student-initiated lawsuit, but could still be on the hook with OCR. Such inconsistencies are not unheard of in the Title IX context. For example, courts premise institutional liability for sexual harassment on a finding of deliberate indifference, while OCR has imposed a stricter and more specific standard. As a practical matter, that means universities like Pittsburgh can continue to restrict transgender students single-sex spaces with little concern for injunctions or damages imposed by the court, but potentially risk being forced to change their policies in the context of an enforcement action by OCR. Decision: Johnston v. University of Pittsburgh, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015).
Florida State University quarterback Jameis Winston was the first pick in this years NFL draft held last week. He wont have to go very far; as expected the Tampa Bay Buccaneers got him (they had the first pick). I have seen a few commentaries on Winstons "off-field" troubles, though generally felt that the mainstream sport media talked around what they were calling "character issues" in the weeks leading up to last nights announcement. What utterly shocked me was a regional sports show in which the commentator noted that some of Winstons teammates, including roommate Ronald Darby, who also declared for the draft this year, might cause some teams to pause because of _their_ off-field issues. There were no specifics provided (admittedly I did not linger on the channel so perhaps I missed them.) But I do know that Darby was in the cab with Erica Kinsman, Winston, and their third roommate. He was in the apartment while Winston assaulted her. According to Kinsmans accounts of the night one of the two roommates came into the bedroom and told Winston that he should stop. Darby was called into front of the school judicial board long before Winston. He was cleared of wrongdoing while roommate Chris Casher, was punished for taking video of the encounter. (It was deleted.) Darby may have other incidents in addition to being associated with this night (though it seems people care little about it); the point is that the commentator mentioned off-field actions as a potential deterrent to his selections by certain teams. Despite the troubles Winston has gotten into during his brief time at FSU, however, and the pending civil lawsuit against him by Kinsman, his draft stock never fell. Let us recall a year ago when Michael Sams draft stock plummeted after he announced he was gay. (See Cyd Zeiglers take on this one year later.) Because in the NFL hierarchy being gay is a bigger distraction than being sued for assault. Lets also recall Notre Dame alum, Manti Teo who was drafted two years ago. He was picked in the second round but his stock fell too after a never-quite-explained story emerged about a dead girlfriend whom he had never met and, it turns out, never existed. This situation was described as a "character issue" and one that teams might have some issues with. Some of us thought teams were reading it as Teo trying to cover his homosexuality. This has never been confirmed, but it certainly was a rumor and rumors abound at draft time and they affect how teams feel about these "off-field issues." So non-normative sexuality related off-field issues = falling stock. Heterosexual sexual assault (and evidence of other misogynistic practices) = first round pick. The organizational memory of the NFL seems to be very short. I fear that Winston will remind them very soon of the need to more deeply address the culture of misogyny and homophobia in the organization. And a final note on that deleted picture of Winston celebrating his first round pick (at home allegedly so he could be with his family) with a plate of crab legs. I know the context; the crabs were a gift from Deadliest Catch star Keith Colburn. Fine, eat and enjoy the crabs. Dont post a picture to social media with them though. And dont be surprised when there is negative reaction by both your new employer (the Bucs deny pressuring Winston to remove the photo, however) and the public. The crabs are a symbol: of ignorance, entitlement, and arrogance. Those all seem like pretty big character issues to me.
This week the Department of Educations Office for Civil Rights released its latest biannual report to the President, Secretary of Education, and Congress summarizing its work in fiscal years 2013 and 2014. The report addressed OCRs efforts to enforce not only Title IX, but also Title VI (race and national origin discrimination), the Rehabilitation Act (disability discrimination) and other civil rights laws applicable to education. According to the report, the agency received almost 20,000 complaints in that two-year period, 27% of which addressed sex discrimination. In contrast, disability discrimination takes up almost half of OCRs docket. _ATHLETICS. _Complaints about athletics constitute the overwhelming majority of the agencys Title IX-related work, notwithstanding the rising number of sexual assault and harassment complaints that weve seen in recent years. last report covered a _four_ year period of time (2009-2012) and reported _half _as many athletics complaints (1,264). The current report provides a number of examples of athletics-related enforcement, including a resolution agreement that it reached with Southeastern Louisiana University in 2014, in which the university agreed to do a better job assessing interests and abilities under prong three and provide womens teams with access to facilities of comparable quality to their mens teams. It also noted several resolutions with public school districts such as Indianapolis Public Schools. Unfortunately, the report did not provide any insight into OCRs handling of "mass complaints" filed against multiple school districts in a single state, which probably constitute a vast majority of the OCRs 3,609 figure. _SEXUAL VIOLENCE_. OCR reported to have resolved 90 complaints involving sexual violence at the K-12 and college level during 2013-14. 25 of those resolutions were by voluntary resolution agreement, which is the agencys preferred way of handling findings of noncompliance. While most of the illustrative examples OCR describes involve colleges and universities (Tufts and Montana, for example), the agency also took enforcement action against at least one K-12 school district for its failure to prevent and respond to sexual violence and harassment. _LGBT DISCRIMINATION_. OCRs report described having resolved two cases, one against a California school district, and another against an unnamed college, in ways that ensured transgender students rights to be protected from harassment and be allowed to access facilities according to their gender identities. To my knowledge, this is the first time OCRs report has described Title IX enforcement of this nature. The agency also described more generally a resolution agreement that required a charter school to conduct "age-appropriate student education on sexual harassment and non-conformity with gender stereotypes." OCR also briefly noted Title IX enforcement efforts related to pregnancy discrimination and retaliation claims.
The Department of Education released three new documents last week related to Title IX, specifically the role of the Title IX coordinator. One is a "Dear colleague" letter from Secretary Catherine Lhamon that begins by reminding all schools that they must appoint a Title IX coordinator: "I write to remind you that all school districts, colleges, and universities that receive federal assistance must designate at least one individual to coordinate their efforts to comply with and carry out their responsibilities under Title IX..." This set of documents related to the position of Title IX Coordinator is very important, especially the letter to coordinators and a resource guide. But as the "Dear colleague" letter points out, these are not new guidelines. Title IX is in its fourth decade. Why do schools need a reminder that they have to follow it? Yes, the role of the coordinator has become far more prominent in the past several years given the visibility of campus sexual assault. Yes, it is important for the Department of Education to continue to inform schools and coordinators of their responsibilities as the application of the law shifts, new issues arise, and great accountability is being called for. Part of the reason, however, for the increased visibility of the Title IX coordinator is because when students started demanding a response from administrators to campus sexual assault very few people knew who the Title IX coordinator was--sometimes this included the Title IX coordinator because the duties of Title IX compliance were wrapped up in another administrators position. This is no longer a desirable practice. As the "dear colleague" letter notes, the coordinator is supposed to answer directly to the president and be "independent." Also, Lhamon suggests that larger schools might consider having _more than one _coordinator to both handle all the issues that arise and to make the position more visible to more of the school community. Again, guidance is good. My frustration lies in the fact that this is not a new requirement. I cannot help but think that maybe there wouldnt be 100+ schools under investigation if schools had taken their responsibility regarding oversight more seriously. I watched The Hunting Ground last weekend (which I will write about this week hopefully) and was fully confronted by the ineptitude and ignorance of so many administrators. There is no excuse. There is a law. Follow it.
Last Friday I blogged about a Title IX case filed against Columbia University by a student who prevailed in a disciplinary hearing for sexual assault but was subsequently and allegedly harassed as a result of his accusers public protest. But Columbia University was also in the news last week because a federal court recently dismissed a case that had been filed by a student alleging that the universitys disciplinary process under which he was suspended for sexual assault was biased against him in violation of Title IX. Like other similar plaintiffs, the "John Doe" plaintiff in this case attempted to raise both of the arguments courts have recognized as plausible applications of Title IX to disciplinary outcomes: arguments of _ERRONEOUS OUTCOME_ and _SELECTIVE ENFORCEMENT_. To be successful, both arguments must be accompanied by allegations that could support a conclusion that the university intentionally discriminated against the plaintiff on the basis of sex. In support of his erroneous outcome claim, Doe alleged that university officials committed errors during the investigation and hearing process that prevented him from demonstrating his innocence to the hearing panel that found him responsible for assault. Specifically, Doe focused on the actions of Title IX Investigator, whom Doe claimed did not adequately investigate the details of the night the sexual encounter occurred, and who presented a report that left out his version of the story. The court was, at the outset, skeptical that the procedural deficiencies Doe alleged prevented him from demonstrating his innocence, noting that the hearing board found that Doe had exerted "unreasonable pressure for sexual activity...over a period of weeks" that rendered ineffective any consent that the victim could have provided on the night in question. As a result, the court concluded, even if the investigator had been deficient in her investigation or presentation of the facts about that night, they would not have made a difference to the outcome. More importantly, the court found lacking any specific allegation in support of Does theory that the investigator was motivated by gender bias, claiming only that she had "worked for a womens resource center in the past," a flimsy basis for inferring bias. Nor could the court give credence to any of the other of Does conclusory declarations of bias, because they were not supported by any allegations of fact. The court also rejected Does selective enforcement claim, i.e., that aside from the matter of his alleged innocence, Columbia punished Doe more severely because of his sex. Yet in this case, Doe did not allege that Columbia intentionally punished men more severely, or failed to adequately examine their innocence, because they are men. At most, the court reasoned, Doe alleged that Columbias disciplinary process is unfair to those accused of sexual assault, but since this category could include men or women, it does not support the conclusion that Columbia intentionally discriminates against men on the basis of sex. And while Doe may argue that men are more likely than women to be accused of sexual assault, and thus more likely to be burdened by the alleged deficiencies in Columbias process, this theory is not actionable under Title IX, according to the court, because of a 2001 Supreme Court decision foreclosing disparate impact lawsuits under Title VI -- the race discrimination statute on which Title IX was modeled. As a result, it is not enough for plaintiffs to claim that a universitys sex-neutral policies or practice impacts one sex more than the other. As demonstrated by this and other similar decisions cited by the court here, colleges and universities do not necessarily commit sex discrimination just because they discipline male students for sexual assault. In contrast, however, when colleges and universities discipline students in actual violation of their own procedures, those cases can be successfully litigated without the lens of sex discrimination under breach of contract and negligence theories, see, for example, this case. Yet, breach of contract and negligence claims dont support the "reverse discrimination" narrative that some may wish to advance by using Title IX to challenge what Title IX has wrought. It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely* liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable, and its application to sexual assault should be repealed. If that is the strategy, however, it does not seem to be working so far. * I say routinely to account for the unusual case (e.g., this case, and possibly this case) where the plaintiff has a factual basis for alleging that the university used him as a "scapegoat" in a misguided effort to demonstrate compliance with an OCR resolution agreement. When that is the situation, Title IX should provide a remedy. However, when a university gets in trouble for going beyond what Title IX requires, it reflects negatively on the university not on Title IX. Doe v. Columbia University, 2015 WL 1840402 (Apr. 21, 2015).
Yesterday, Columbia University student Paul Nungesser sued the institution, alleging that it is liable for harassment that he experienced in the wake of a fellow students accusations that he sexually assaulted her. The university did not find Nungesser responsible for any assault, and his accuser, Emma Sulkowicz, has been protesting this outcome by carrying a mattress with her around campus, a protest that is doubling as performance art project for credit in her art class. The protest has apparently made Nungessers life difficult. He alleges that it has caused him to experience "verbal aggression, intimidation, and hostility" for which he seeks to hold Columbia liable for unspecified money damages. His primary claim is under Title IX, which means that his case will have to satisfy the following elements required for institutional liability for harassment: (1) that the harassment is severe or pervasive; (2) that the harassment is because of sex; that Columbia officials had notice of the harassment; and (4) that they responded with deliberate indifference. I think all four of these elements will be challenging for him to satisfy, based on the allegations in the complaint. First, though he describes the harassment as "severe" and "pervasive," he does not give very many specific examples beyond a couple of Facebook comments posted by friends of Sulkowicz who are not alleged to be students at Columbia. Verbal harassment must be really pervasive to be actionable, and the court is going to require that he show examples to satisfy this requirement. Second, there is no allegation that he reported this harassment to Columbia University officials, nor that they responded with deliberative indifference. Finally, he does not explain in the complaint why the harassment targets him because of his male sex, as opposed to because people apparently believed he had gotten away with committing sexual assault. It is possible that harassers would have assaulted a female they perceived to have gotten away with sexual assault or other comparable violence in a similar way. Suprisingly, he does not include a defamation claim against Columbia or Sulkowicz, even though what seems to be at the crux of Nungessers lawsuit is the fact that Sulkowiczs protest is making people believe he committed sexual assault. Why doesnt he sue her for defamation, and try to get an injunction against the protest? After all, she would have no special defense arising from the artistic nature of her protest. If he indeed states falsely that he assaulted her and his reputation is damaged as a result, he should be able to prevail as long as he can prove that her claim is false. Interestingly, the litigation strategy he has chosen avoids having to do just that.
Today the Department of Educations Office for Civil Rights issued guidance reminding educational institutions of their obligation to designate a Title IX Coordinator. This has been a requirement since the initial Title IX regulations promulgated in 1975, but far too often we read about institutions lacking in this critical area of compliance. Lately, though, it seems like the Title IX Coordinator obligation is sinking in, as colleges and universities in particular are trying to catch up with their obligations to address sexual assault on their campuses. As a result, whereas at one time most schools who had a Title IX Coordinator considered it the role of someone in athletics, the position is more likely to be properly regarded as one with campus-wide duties and is often assigned to someone who otherwise works in human resources, student affairs, or increasingly, a stand-alone full-time position. OCRs guidance consists of a Dear Colleague Letter that lays out various requirements and considerations regarding Title IX Coordinator, such as the requirement that they be independent and not engage in conflicts of interest, that they have the authority and support to carry out measures necessary to ensure the institutions compliance with Title IX, that they be visible and easy to find, and that they be trained. The guidance also contains a resource guide that provides an overview of an institutions compliance obligations under Title IX, and points the Title IX Coordinator (and other readers) to additional sources of information on those obligations.
Last week Western Kentucky University announced the suspension of its swimming and diving program for five year after a Title IX investigation revealed widespread incidents of hazing, harassment, and sexual assault. The investigation was reportedly prompted by a police report filed by one of the swim team members, alleging numerous examples of criminal and otherwise reprehensible conduct. For example, the complainant reported that another of his male teammates sexually assaulted a female teammate who was unconscious, while others watched. He also reported that one of his male teammates had once placed in a chokehold for as long as he could stand it, causing him injury. When the police searched the house where swim team members lived and held parties, they found photographs of teammates who had passed out from drinking, arranged in nude or semi-nude sexual positions and, in some cases, having been written on with racist and homophobic language. As I told a columnist for the local paper in Louisville, I am glad to see universities taking seriously the problems of hazing and sexual assault. Suspension is a reasonable response to pervasive and intractable climate of hostility, aggression, and assault like the one revealed at WKU. However, one angle on this case that no one seems to be publicly discussing -- and that I myself was slow to realize -- is that all of the examples of misconduct appear to involve male swimmers, yet the university has suspended the entire program, mens and womens alike. This raises Title IX concerns under the principal of equal treatment that is codified in the regulations. Female athletes participation is impaired -- by virtue of being held accountable for other athletes misconduct -- in a way that no male athletes participation is impaired. It may have been the case that in the course of responding to a serious problem with necessarily promptness, university officials did not consider the discriminatory effect on female swimmers. Perhaps in retrospect they can reexamine the decision to suspend the female swimmers and, if warranted, reinstate their athletic opportunities.
In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians. Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim. (The court refused to dismiss the plaintiffs claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.) The court dismissed the plaintiffs Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coachs concern that they were dating each other, which is not prohibited under Title IX. Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine. As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans. So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in ones appearance or mannerisms, although the EEOC has adopted the broader interpretation. I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX. Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).
The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on April Fools Day. This years issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory remarks toward women," and a "photo depicting a woman with a beard as the school’s most eligible bachelorette." I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision. To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiffs ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard. I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut mens teams. Title IX does not micromanage institutions decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or dont censor, but dont misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense. The statute has enough haters already. Moreover, it appears that Uticas concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in womens sports. Thats a 17 percentage point disparity and among the most egregious Ive seen in present day. If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more womens teams.
In the wake of similar stories out of Duluth, Iowa, and Tufts, we note that another female coach has been terminated this year, this time by the University of Delaware. Softball coach Jaime Wohlbach was reportedly fired abruptly on Monday afternoon, in the middle of her season. According to Wolhbach, she was told at the time that she "ran a hostile environment" for her players, which she disputes and points out that she had not received any indication from her supervisor that players had complained or were unhappy. Considering public comments Wohlbach has since made, it appears that an alternative possible explanation for her termination is that it is the culmination of an ongoing conflict with her supervisor, associate athletic director Joe Shirley, whom Wolhbach accuses of micromanaging her team and giving her an unwarranted poor performance evaluation. Given that Wohlbach apparently reported him to human resources for "bullying," it seems possible that her termination is retaliation for her complaint. It remains to be seen whether Wohlbach will take any legal action invoking Title IX. It is certainly possible that the "bullying" she complained of targeted her because she is a woman and/or because she coaches a womans team. Additionally, if the university had actually received complaints about the coachs "hostility" towards her players, the fact that its response to those complaints was to immediately terminate the coach could reflect a sexist double standard, if it is the case that Delaware would have permit male coaches with more leeway in that situation, such as an opportunity to address or explain the complaints. The Title IX angle is speculation on my part. But since we have seen other examples of similar bias against women coaches, including the very recent examples noted above, it is not far fetched to consider the possibility of sexism underlying this case as well.
I know we do this every year, but this is another post about discrimination against gender non-conforming students. It always happens somewhere in the United States during prom/yearbook season. The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo. The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the students mother "Girls wear dresses and boys wear tuxes, and thats the way it is," came under pressure from the National Center for Lesbian Rights. So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of todays fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent. On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.
Last week a federal court in New York ruled in favor of Vassar College, granting its motion for summary judgment on discrimination and other claims filed by a male student who had been expelled for sexual assault. The plaintiff, Peter Yu, and the female student who accused him had provided a university disciplinary committee with vastly different accounts of the encounter at the heart of this case; he claims he asked her if she wanted to have sex and she agreed, while she claims that she did not agree and was "helpless" to resist his advances. They also had different interpretations of the messages she sent to him later, in which she apologized for leading him on and offered to "stand up" for him should get in to any trouble over the fact that someone in his dorm called security (because they thought he was "potentially hurting somebody."). His position is that the messages verify his version of the events, while she claims she sent them in a state of "denial," "shock" and "disbelief." Based on this evidence -- along with the statements of witnesses who testified to the female students intoxicated state and that they were concerned for her when they saw her leave with him -- the committee found Yu responsible and the college expelled him in March of 2013. He sued the university three months later. (We blogged about his complaint at the time.) Yus primary claim against Vassar is that the colleges decision to expel him violates Title IX. His argument to this end incorporated two alternative theories that have been accepted by earlier precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement. First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome. To this end, Yu made numerous allegations of procedural flaws. For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainants father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law. Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error. For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that males invariably lose when charged with sexual misconduct at Vassar." Instead, Yu argues that only bias could explain why the committee did not read the complainants post-incident messages as evidence of his innocence. But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainants explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant. Yu also argued that Vassars policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men. Vassars policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex. Moreover, the court recognized that Vassars own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women. Yus second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student. Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled. As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts. In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures. But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing. Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).
My last blog post a few weeks ago was a hopeful one about transgender students and bathrooms. This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the mens bathroom and locker room facilities. We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This weeks ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here. Johnston used mens bathrooms without (according to Inside Higher Eds article--linked above) any problems. It was, apparently, his use of the mens locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there werent any. They wanted him to use a unisex bathroom. He continued to use the mens facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior." The university claims that Johnston could not use the mens bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate. We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the mens bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyones privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnstons lawsuit.
The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job. The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department. At the time, she presented as a man and went by a traditionally male name. In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university. She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred. When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII." The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status." This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition. The lawsuit contains several allegations that support the inference that the universitys tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair. At this university, such recommendations are routinely followed, yet in Tudors case, the Dean overrode the decision. Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases. So a positive outcome in this case could translate to expanded federal protection for transgender students as well.
Last year we blogged about a lawsuit filed in federal court on behalf of a female student at the University of Virginia that was seeking to nullify the amendments to the Clery Act contained in the reauthorization of the Violence Against Women Act. The plaintiff had reported to her university that she had been the victim of sexual harassment and assault. After investigating the matter, the university did not find the accused student responsible for the alleged misconduct. The student then filed a complaint with the Departments of Education and HHS, alleging that UVA violated Title IX in the handling of her complaint. After the VAWA reauthorization, she filed this lawsuit seeking an order from the court that would compel the federal agencies to disregard the newly-amended Clery standards to the investigation of her case. She argued that these standards were weaker than Title IXs and therefore diluted its protection. Some of Clerys weaknesses, she argued, are its failure to codify a preponderance standard or a definition of consent. Last week, the federal court in D.C. dismissed the lawsuit based on an "erroneous interpretation" of the Clery Act amendments. As the court correctly states, Clery and Title IX impose simultaneous, not alternative, requirements. Therefore, and as the Department of Education has since clarified, nothing in the Clery Amendments changes an institutions obligations under Title IX in any way. The plaintiff apparently, and not unreasonably, wishes that Congress had endorsed the preponderance standard as a matter of statutory law (a stronger and potentially more lasting source of law than the Department of Educations interpretation on this issue) and that it had chosen to define consent. Yet, Congresss failure to do this isnt actionable in a court of law. The plaintiff is no worse off under the amended Clery than she was prior to those amendments. While she may believe that the Clery Act amendments should have been stronger, that is a policy argument more appropriately directed at the political process. Doe v. U.S. Dept of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).
Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault: * A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body. She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated. JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted. * A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student. He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters. The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case. The lawsuit seeks $3 million in damages. * Parents of a fifth-grade student in Grand Rapids, Michigan, have sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately. The lawsuit alleges that school officials violated the boys right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him. * A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. * A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million. We have already blogged about the accusers suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible. She has also sued him directly.
It is always nice to Friday blog a positive story. Pierce College, a community college in the state of Washington, issued a memo to the college community this week about the use of bathrooms by transgender individuals. My cursory Google news search did not reveal any particular incident, though what I suspect has happened is that trans* and gender queer peoples use of bathrooms on campus is upsetting some individuals who have turned to the administration for redress. This was the response from the colleges Title IX coordinator (also the VP for human resources):
_Recently we have received questions from members of the college community at both Fort Steilacoom and Puyallup about transgender individuals and restroom use. The short answer is that every member of the Pierce College community is free to use whichever restroom aligns with their gender identity. Pierce College is also in the process of identifying gender neutral restrooms on both campuses, which will be available for anyone to use, regardless of gender identity or expression._
_It is not up to other people to determine whether or not a given person is in the “right” restroom. If an individual chooses to enter that restroom, it is the right restroom for them. (In the rare event that they entered the restroom by mistake, they will certainly exit upon realizing the mistake without any outside help.)_
She does go into the long answer which involves state and federal laws and includes some links for additional information, including one about the application of Title IX protections to transgender students.
The response reminded me a little of this photo from the Transcending Gender Project that I have seen around social media in the past few weeks.
Of course as we have seen in the several cases of high school athletic associations attempting to pass policies governing the participation of trans* athletes, bathrooms and locker rooms cause some people to grow quite agitated. There is a presumption, which I mentioned the other day, that trans* people are predatory and will engage in sexual acts with unwilling cisgender people in bathroom spaces. Thus, people who report a trans* or gender queer person using the "wrong" bathroom may feel they are being preemptive when they call security. The letter to the Pierce College community addressed this as well:
_If any person is behaving dangerously or actively harassing others in a restroom or any other Pierce College space, please contact Campus Safety. The mere presence of someone using the restroom does not qualify as a dangerous or harassing activity and should not be cause for alarm or complaint._
Ohio States womens hockey coach has resigned in lieu of being fired for misconduct that included sexual harassment of his players. The university reportedly commenced investigating Nate Handrahan last November after receiving an anonymous complaint from a teacher or instructor that one of his players had shared in class the fact that he made sexually explicit comments to the team. In the course of investigating the complaint, the university received verifying testimony of other witnesses, who attested not only to his use of sexual language and innuendo (such as for example telling them in practice to "get horny for the puck") but also his verbally abusive and intimidating style. (The universitys report also concluded that he had engaged in retaliation against his players as well, though the news account I read did not go into details on this.) Earlier this year, Kris blogged about the dismissal of UNHs womens hockey coach over an incident in which he assaulted a player by pulling her to the bench by her shirt, causing her to fall. And I cant help but ask about this case the same question Kris asked then: would this have happened in mens sports? Notwithstanding prominent counterexamples, such as the dismissal of Rutgers mens basketball coach for abusive conduct towards his players, there is still a lot of tolerance for, and even expectation of, an aggressive style among coaches of mens teams. At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of womens teams -- men and women alike -- in something of a double bind as they receive mixed messages from society (and possibly from the culture of their athletic department): be aggressive, to prove yourself as a coach. But dont be aggressive towards female players, because women are different. The fact of this double-bind is not only dangerous for coaches, but for players as well. Not only because coaches may wrongly infer that abusive conduct is appropriate, but also because when the coach is dismissed for such misconduct, that in itself further diminishes the athletes experience by depriving them of continuity in coaching. By no means do I point out this double standard to condone the actions of Coach Handrahan here. Nor do I suggest that Ohio State in particular is practicing a double standard. (In fact, Ohio States similar response to the band director situation last fall suggests that Ohio State is consistent when it comes to addressing sexual harassment in its programs.) But in a larger sense, this case helps illustrate the importance of being consistent across mens and womens programs when it comes to tolerating harassment, abuse, and bullying by coaches. Aggression that crosses the line into that territory should never be mistaken for a coachs job requirement, regardless of the sex of the athletes he or she is coaching.
Shows like Outside the Lines give me a little more faith in ESPN. This weeks episode (a piece of which can be found here) profiled two transgender athletes and discussed more broadly the issue of trans athletes in youth and high school sports. The episode focused on two transgender students. The first, Leo, is a trans boy in Maine who recently came out and received permission to swim on the boys team at his high school. Maine is one of the 33 states that has a policy addressing the participation of transgender athletes in high school sports. They passed their policy in 2013 and Leo took his situation to the high school athletic association which approved his participation on the boys team last fall. Leos experience, based on his own telling and interviews with his teammates and coach, was positive. What was striking about his interview was the reminder to all of us that this issue is about more than just the right to participate (not to diminish the very important civil rights component here). It is about what sports can provide participants: "I think I can go through a lot more more confidently than if I hadnt [had this experience]." Also important to note is that Leos teammates and coach are very supportive of his participation. The three teammates OTL interviewed called him brave. The other story, of Shay, is a sharp contrast to Leos because she lives in Montana which has been unable to successfully pass a policy regarding transgender participation. I wrote about the policy proposal in January. That policy was withdrawn, according to OTL, because the Montana High School Association did not feel it had enough votes (it needed a 2/3 majority among its 120 members) to pass. This has left Shay, who competed in both track and basketball as a middle schooler, unable to play high school sports. Shays story is particularly sad because she has struggled throughout her transition and sports offered her an outlet. OTL interviewed members of conservative Christian organizations that opposed the policy. (Not all of these interviews made it to the above clip.) So-called privacy concerns arose again in this conversation. This argument continues to privilege the the privacy of cisgender children over that of transgender children. This was especially interesting in Shays case because she was not out when competing in middle school and would change in bathroom stalls to protect her identity--and I would argue, her personal safety. This leads to another issue that opponents have: safety in locker rooms. This is an argument similar to one that has been made against gays and lesbians, which assumes an innate predatory instinct (recall the campaign against gay Boy Scouts). Safety in a locker room is the result of the culture of that locker room, regardless of ones sexuality, gender identity, hormones, chromosomes, or genitals. The safety of gay and transgender people is far less secure than their heterosexual and cisgender peers. Another conservative safety argument is that mixed gender locker rooms--their term, which negates the gender identity of the transgender children--will result in undesirable shenanigans of a sexual nature. Lets not forget the many, many, many incidents of hazing and bullying in locker rooms that are perpetuated among cisgender people of the same sex and involve acts of genital touching and penetration. These are all straw man arguments, which one can easily see through when the opponents refer to transgender children using their biological identity and encourage them to be comfortable being themselves and not hiding who they are; what they mean is not hiding their biological sex. The implication is that these children are being both deceptive and unnatural--that is the foundation of their opposition, not safety concerns. The rationale behind why youth and interscholastic sports should exist in our culture includes the belief that they are character-building, and teach leadership, cooperation, and sportspersonship. And though we can poke many holes in this Great Sports Myth, there are still many children who benefit a great deal from sports participation at a young age. To deny these experiences to any child is an injustice and to deny them by blaming and labeling and stereotyping them is unconscionable.
Champion. Noun. "A person who has defeated all opponents in a competition or series of competitions, so as to hold first place." Well -- usually. In Connecticut yesterday, two girls ice hockey teams squared off to determine the state champion. After three periods of regulation play, the score between the team from Simsbury and the team from East Catholic/Glastonbury/South Windsor was tied 2-2. So they played a period of "sudden death" overtime, in which, if either team had scored, the game would have ended. But no one scored. So they played another overtime period. Still, no one scored. Then, as the teams geared up for a third overtime period, officials told the teams to line up on blue lines so they could be awarded co-champions. As ESPN-W reports, the decision not to let the game continue until there was a winner caused confusion, surprise and disappointment. It not only departed from the expectations that athletes generally have about the ending of a championship game -- but apparently, from the rules for determining this particular championship that had been circulated to the teams ahead of time: "eight minute sudden death overtimes until the game is decided." In addition to disappointing the players involved, the situation has also raised Title IX concerns. For one thing, there is reportedly good reason to believe that the girls state championship game ended without a winner so that the later-scheduled boys game, a conference championship, could begin on time. And many believe that if the situation were reversed, a boys state championships would never have been allowed to end without a winner. Title IX requires that schools provide boys and girls with athletic opportunities of similar quality. One factor of quality, as specified in the regulations, is the scheduling of competitions. For example, courts have determined that the practice of depriving girls of the opportunity to play games during the "prime time" (usually, weekend and evening times) violates Title IX because it demotes girls sports to a second-class status. The regulations also specify that girls and boys should have access to athletic facilities of equal quality. For example, some states hold high school championships at a large premier arena, such as a state university. If only boys teams have access to this high level of quality (see, e.g.), that would violate Title IX. What happened in Connecticut yesterday could arguably violate Title IX, either as an example of unequal scheduling or as an example of unequal access to facilities. If Connecticut schools schedule the boys state championship at a time of day, e.g., evening, when the game can be played to its conclusion, but the girls, scheduled during the day, have to stop early to accommodate the next game, then there is inequity in the scheduling of competitions. Similarly, if the boys state championship is held at a rink that does allow adequate time for the game, but the girls state championship is hosted at rink that is not able to provide adequate time, the latter rink is a facility of inferior quality. Yesterdays championship could have either been held at a different location---one that could accommodate a complete game---or it could have been allocated a different time period--i.e., a sufficiently long enough one to allow the game to conclude. If it is not possible to make those kinds of accommodations to both boys and girls championship games in the same year, schools could agree to provide the better facility/schedule to the girls championship one year and to the boys the next. Alternatively, the schools could have imposed a rule that shortens the time it takes to play a championship game --boys _and _girls -- such as by ending it by penalty shots after a certain number of evenly-matched overtimes, so that they both fit in the time and place allotted to them. Title IX does not mandate _how_ schools provide equal treatment to girls and boys athletic programs, only that they do. Hopefully the schools in Connecticut that participate in girls hockey learn from yesterdays mistake and ensure that future girls championships receive the equal respect they deserve and the equal treatment the law requires.
I have been meaning to write this post for several weeks now and it seems appropriate to do so--finally--on International Womens Day. There has been a fairly significant (relatively speaking) media attention given to the issue of women coaching womens sports in the past few weeks. Both Erin and I have been speaking to the press and on radio (here, here, and here) answering questions about why there is a lack of female coaches, the specific situations at Iowa and Minnesota Duluth, and if Title IX can address this issue. The statistics have been stated: the percentage of women coaching womens teams at the intercollegiate level has dropped from approximately 90% when Title IX was passed to its present percentage of approximately 40%; there has been no comparable (or rather none at all) rise in women coaching mens sports. While we appreciate the coverage this issue has received, these are not new numbers. This is not a new problem. The answer to the why now question is most likely due to these high-profile cases coming in quick succession. It is important to note though that these are high profile cases because the coaches involved have challenged their firings. We have seen coaches file complaints and lawsuits in the past (Fresno State, FGCU are just two examples) after being fired. The frame in these cases though has been one of retaliation. Most of those coaches felt they were being retaliated against for complaining about and challenging the treatment of their womens programs. Title IXs protection against retaliation is clear and several of these cases resulted in large jury awards. They still, however, lost their jobs and many have not gotten back into coaching, in part because the situation for female coaches is so dismal. This has been the focus of the current debate: the culture in which female coaches work. This is an important conversation (also not new but seemingly now more public). It has also inspired a closer look at programs. The Tucker Center released its women coaches report card recently. Miller and her advocates have spoken about the lack of athletic department support for womens ice hockey. At Iowa, former field hockey coach Beth Beglin compiled a very thorough and quite disheartening report about the state of the athletic department since the womens and mens departments merged in 2000--and more specifically what has happened since current AD Gary Barta took over in 2006. Beglin notes that in this time 83% of female head coaches have been fired. In the same time only 11% of male head coaches have been let go. Last week the Institute for Diversity and Ethics in Sports released its annual report card about the state of gender and racial equality in intercollegiate sports. From the report summary: College sport received a C+ for racial hiring practices by earning 78.5 points, down from 82.3 points in the 2013 report card. College sport received a C- for gender hiring practices by earning 69.4 points down from 75.9 points. Lost in the recent conversations have been discussions of race. All of the women we have been talking about are white women. The picture of the female head coach is most often of a white woman. This weekend, discussing stereotypical images of female leaders in sports with friends, I rather uncritically presented a white woman as the norm. And though the statistics certainly bear out this picture, the absence is in dire need of being addressed whenever we are discussing women in leadership positions. The norm has to be challenged.