Wednesday, April 15, 2015

Another female coach terminated: University of Delaware

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 woman's team.  Additionally, if the university had actually received complaints about the coach's "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. 

Wednesday, April 08, 2015

Prom season discrimination

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 student's mother "Girls wear dresses and boys wear tuxes, and that's 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 today's 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.

Monday, April 06, 2015

Court Dismisses Expelled Student's Case Against Vassar

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 student's 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.)

Yu's primary claim against Vassar is that the college's 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 complainant's 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 complainant's 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 complainant's 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 Vassar's 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.  Vassar's 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 Vassar's own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women. 

Yu's 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).

Friday, April 03, 2015

Expulsion for bathroom use

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 men's 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 week's 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 men's bathrooms without (according to Inside Higher Ed's article--linked above) any problems. It was, apparently, his use of the men's 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 weren't any. They wanted him to use a unisex bathroom. He continued to use the men's facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior."

The university claims that Johnston could not use the men's 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 men's 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 anyone's privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnston's lawsuit.

Thursday, April 02, 2015

DOJ Challenges Discrimination Against Transgender Professor

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 university's 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 Tudor's 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.

Monday, March 30, 2015

Court Dismisses Lawsuit Challenging the Clery Act Amendments

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 IX's and therefore diluted its protection. Some of Clery's 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 institution's 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 Education's interpretation on this issue) and that it had chosen to define consent.  Yet, Congress's failure to do this isn't 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. Dep't of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).

Friday, March 20, 2015

Sexual Assault Litigation Update

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 accuser's 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.

Friday, March 13, 2015

Bathroom policies that make sense

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 people's use of bathrooms on campus is upsetting some individuals who have turned to the administration for redress.

This was the response from the college's 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.

The End.

Thursday, March 12, 2015

Ohio State Hockey Coach Resigns Over Harassment Complaints

Ohio State's women's 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 university's 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 UNH's women's 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 can't help but ask about this case the same question Kris asked then: would this have happened in men's sports?  Notwithstanding prominent counterexamples, such as the dismissal of Rutgers men's 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 men's teams.  At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of women's 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 don't 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 State's 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 men's and women's 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 coach's job requirement, regardless of the sex of the athletes he or she is coaching.

Wednesday, March 11, 2015

OTL covers young transgender athletes

Shows like Outside the Lines give me a little more faith in ESPN. This week's 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. Leo's 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 hadn't [had this experience]."

Also important to note is that Leo's 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 Leo's 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. Shay's 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 Shay's 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 one's 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. Let's 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.

Monday, March 09, 2015

"Co-Champions" in Connecticut Raising Title IX Concerns

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.  

Yesterday's 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 yesterday's mistake and ensure that future girls' championships receive the equal respect they deserve and the equal treatment the law requires. 

Sunday, March 08, 2015

Lots happening on women in coaching and leadership

I have been meaning to write this post for several weeks now and it seems appropriate to do so--finally--on International Women's Day.

There has been a fairly significant (relatively speaking) media attention given to the issue of women coaching women's 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 women's 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 men's 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 women's programs. Title IX's 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 women's 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 women's and men's 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.

Friday, February 27, 2015

Government Files Brief in Support of Transgender Student's Title IX Lawsuit

The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender student's lawsuit against his Michigan school district.  The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys' bathroom, and did not intervene to protect him from the harassment of his peers. 

The government's brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case.  Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim.  This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief.  Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesn't dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the government's broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a student's gender identity or transgender status. 

Thursday, February 26, 2015

NYC Public Schools Violate Title IX With Athletic Offerings

The Department of Education's Office for Civil Rights announced this week that it has entered into an agreement obligating the New York City public schools to come into compliance after finding that the country's largest school system violated Title IX by depriving athletic opportunities to girls.  OCR had been investigating the school system in response to a 2010 complaint filed by the National Women's Law Center.

OCR found that the New York City Department of Education could not satisfy any one of the prongs in the familiar three-part test for measuring equity in the distribution of athletic opportunities.  The test allows schools to demonstrate compliance with evidence of either (a)  a distribution of opportunities proportionate to the percentage of students of each sex; (b) history and continuing program expansion for the underrepresented sex (here, girls); or (c) providing enough athletic opportunities to satisfy the interests of the underrepresented sex.

In examining the first prong, OCR found that NYC public high schools would have had to provided 3682 additional female athletic opportunities to achieve proportionality.  The second prong was also out of reach, as it was actually the over-represented sex that benefited more from program expansion, netting 125 more boys' teams that girls' teams over the time period under investigation. The Department also denied more requests to add girls' teams than boys' over the relevant period.

Finally, the Department could not satisfy the third prong, as it was unable to demonstrate that it even examined the interest level of its female students at all, let alone by any of the methods that OCR considers like surveys or participation data in non-scholastic athletics.  Moreover, the fact that the Department had denied requests from school principals seeking to add girls teams in sports like volleyball, softball, basketball, soccer, tennis, cross-country, bowling, golf, and swimming served to indicate unmet interest.

In response to this findings of noncompliance, the Department has now entered into an agreement obligating them to assess female students' athletic interests by multiple means including but not limited to surveys, and to add teams as appropriate in response to evidence of unmet interest. It must also develop a procedure by which students can formally request the addition of teams and provide Title IX training to athletic directors.