Progress and setbacks during Pride month

June 27, 2022
Title IX

What a wild 50th birthday week Title IX had, with progress and setbacks during Pride month.

First, the progress: The U.S. Department of Education released proposed changes to Title IX regulations that would fix some of the damaging alterations imposed under the Trump administration. For the first time, the regulations also would clarify that Title IX protects against discrimination or retaliation based on sexual orientation and gender identity, including “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.” As regulations instead of advisories from the Office for Civil Rights, these protections would have the force of law.

The Department sidestepped the issue of transgender athletes for now, though, stating that it plans to engage in a separate rulemaking process to address Title IX’s application to athletics

Among other positive proposed changes, schools would have to use the same standard of evidence for considering cases of sexual harassment and assault that they use for other kinds of misconduct, instead of setting an arbitrarily higher bar for Title IX cases. (Side note: LGBTQ students get harassed and assaulted at higher rates than straight or cisgender students.) The regulations expand the definition of sexual harassment, resolving what became known as the “one free rape rule” before facing any consequences under the Trump regulations. Colleges could no longer ignore off-campus sexual misconduct by students, staff or faculty that creates a hostile environment on campus. Live hearings and cross-examinations that can re-traumatize victims and made Title IX cases excessively like a courtroom no longer will be required (though permitted). Educational institutions will have to provide supportive services to students or staff facing any kind of sex discrimination. And — this is one of my favorites — the proposed regulations give parents and guardians more power to act on behalf of students.

That’s the progress. You’ve probably read of last week’s setbacks. The Supreme Court took away the right to abortion, and Justice Clarence Thomas proposed in his consenting opinion that the Supremes next “reconsider” the rights to contraception, same-sex marriage, and same-sex relationships. This has been a long campaign by conservatives to destroy the right to abortion, even under Title IX. Beginning in 1975 Title IX was interpreted to include abortion among the health care services to be provided to college women. That changed in 1988. Civil rights activists were pushing Congress to pass the Civil Rights Restoration Act after the Supreme Court had decimated civil rights in education in a 1984 ruling. To get the bill past conservative senators, Congress agreed that no school could be required to offer abortion. The best that women’s advocates could do at the time — and this is important — was to include a provision saying that no student can be penalized for having an abortion. Keep that in mind. Retaliation against a student for having an abortion violates Title IX.

After the proposed regulations get published in the Congressional Record, the public will have 60 days to comment on them before they could be adopted.

In other LGBTQ-related news, the federal Office for Civil Rights gave Tamalpais Union High School District in Marin County, Calif. a series of steps it must complete after it inadequately responded to persistent harassment of a transgender student by another student. LGBTQ students fought for years to get Yeshiva University in New York City to recognize the YU Pride Alliance as an official student group, to the point that a judge has ruled that the university must stop discriminating and do so.

There’s a lot of education needed. A Washington Post-University of Marlyland poll found that a majority of respondents didn’t think transgender students should be allowed to compete in girls’ athletics. And Women’s Running published a nice overview of LGBTQ athletes seeking protection under Title IX. In elite sports not subject to Title IX, FINA, the international swimming federation, barred transgender women who’ve gone through any part of male puberty from competing at elite levels.

On the up side, ongoing protests against Seattle Pacific University‘s rule prohibiting full-time staff from being in same-sex relationships include a sweet Tik Tok video of graduating students handing the college president Pride flags when receiving their diplomas.

Elsewhere

When former President Trump and his Education Secretary Betsy DeVos changed the Title IX regulations, the new rules seemed designed to dissuade students who’d been sexually assaulted from complaining about it. Now, data show that far fewer students filed complaints under Trump’s regulations, the Associated Press reported. Keck Hospital at the University of Southern California entered a resolution agreement with the Office for Civil Rights to improve its policies and procedures for handling complaints of sexual harassment and assault. A lawsuit filed by three students claiming that Cape Fear Academy, Wilmington, N.C. discriminated and retaliated against them for protesting the mishandling of sexual harassment complaints can move forward, a judge ruled. Eight former students sued Ringling College of Art and Design, Sarasota, Fla. for mishandling complaints of sexual assault and staling. Harvard University is allowing a professor who spent two years on academic leave for violating policies on sexual harassment and professional misconduct to return to teaching.

A new NCAA report on “The State of Women in College Sports” says men athletes gained more playing slots than did women in the past 20 years (even though women are a majority of college students), and colleges spend roughly twice as much on men’s teams than on women’s in NCAA Division I, among other sad facts. Colleges and universities with football programs spend two to three times as much on men’s sports as on women’s, and the gap has grown substantially in the past decade. A high-ranking U.S. senator asked the NCAA to explain what it’s doing (if anything) to see that schools comply with Title IX. An excellent article in the New Haven (Conn.) Register describes how schools game the Title IX system to officially comply with the law in athletics while still short-changing girls.

A new study shows that women scientists don’t get the credit they deserve in articles published by co-investigators.

It’s hard to believe we still see this problem in 2022, but a court ruled that Charter Day School in Leland, N.C. can no longer discriminate by requiring girls but not boys to wear skirts.

On the up side

A slew of articles about Title IX for the law’s 50th birthday last week covered lots of upbeat reminiscing, and a good number pointed out how far we still have to go for parity. One of my favorites was this New York Times article about the positive role that angry parents play in enforcing Title IX in high school athletics. Another one I liked was this article by the Indianapolis Star giving well-deserved credit to Marvella Bayh, the first wife of the “father” of Title IX, Sen. Birch Bayh.

Where you’ll find me

July 10, 8:00 a.m. ET — Tel Aviv University in Israel hosts a day-long Title IX symposium, and I’ll be on a virtual panel about Title IX and athletics.

Friday, October 28 — I’ll be speaking at a Title IX conference at Northwestern University, Chicago.

November 10-12 — I’m looking forward to two appearances at the National Women’s Studies Association conference in Minneapolis. One is a panel session and the other is an Author Meets Critics session at which four fabulous scholars will discuss 37 Words.

*** Would you like to set up an in-person or Zoom session with me for your organization or book club? Reach me through my Contact page.***

I published another article in the Washington Post’s Made by History section, this one on “The true mother of Title IX. And why it matters now more than ever.” The Christian Science Monitor included 37 Words in two articles — a cover story one “Title IX at 50” and a sidebar examining the racial gap among women athletes in colleges. The Smithsonian Magazine quoted me and my book in its article about Title IX. Women’s Running quoted my book in “A look at LGBTQ Athletes’ Fight for Protections Under Title IX.”

I’m not just a Title IX wonk, you know. My first book was about electric vehicles. So I joined Clean Energy New Hampshire recently for a Zoom discussion about EVs in New Hampshire. You can find me at the 2:29 time point of this video.

The Guardian mentioned 37 Words prominently in its story on the history of Title IX. Read about the Supreme Court’s history of curtailing Title IX and other civil rights laws in my article in The Washington Post Made by History section. I am delighted that former Chancellor of the University of Illinois, Springfield Susan Koch wrote a glowing review of 37 Words in the Des Moines Register. The Nation magazine published an excerpt from my chapter 5, which introduces Title IX’s application by the movement against sexual violence. The Washington Monthly gave 37 Words a fine review — check it out. The Wall Street Journal published a review of my book and I wrote a Letter to the Editor correcting some misinformation in that review.