In my home state of Massachusetts, the legislature recently added a prohibition against discrimination on the basis of gender identity to anti-discrimination laws that cover education. Gender identity is defined int he law to mean "a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."
According to the Massachusetts Transgender Political Coalition, which advocated for the law along with GLAD and others, the new law "would make clear that it is illegal for public schools to discriminate on the basis of a student's gender identity, and it would strengthen the school's ability to protect students from violence." This is an important clarification because even though transgender students face an elevated risk of bullying and harassment, federal law does not enumerate protection for gender identity, and not all courts interpret gender-identity discrimination as a subset of sex discrimination that is already prohibited by federal Title IX and others state anti-discrimination laws.
Other states that already have anti-discrimination or anti-bullying laws that protect transgender students are: Connecticut, California, Colorado, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Vermont, Washington, and Washington D.C.
Showing posts with label legislation. Show all posts
Showing posts with label legislation. Show all posts
Friday, November 18, 2011
Wednesday, July 14, 2010
Petition for data collection in high schools
As we have noted previously, there is a bill currently in the US House of Representatives that calls for the collection of data about gender equity in athletics in high schools--similar to that collected by the Department of Education. If you would like to urge Congress to pass the High School Athletics Accountability Act, you can go here and sign the petition. Your email address is required but will not be displayed. You can also choose not to have your name displayed.
Thursday, January 28, 2010
Student Nondiscrimination Act Introduced in Congress
Yesterday, Representative Jared Polis (D-Co.) introduced in the House of Representative a bill that would provide Title IX-like protection to LGBT students. If passed, the Student Nondiscrimination Act would offer remedies for discrimination that targets students because of their "actual or perceived sexual orientation or gender identity."
This law is sorely needed. GLSEN reports that 86.4% of LGBT students who responded to a 2007 school climate survey said they had been harassed in the past year. 60.8% said they felt unsafe at school because of their sexual orientation. Yet, there is no federal law protects students from discrimination on the basis of sexual orientation and gender identity, like there are for protected categories of sex (Title IX), race (Title VI of the Civil Rights Act, which applies to public accommodations), and disability (Rehabilitation Act, ADA). Some courts have interpreted Title IX and the Equal Protection Clause to protect LGBT students, but no uniform standard or scope of protection has resulted from these limited decisions. Additionally, while 14 states enumerate protection for students on the basis of sexual orientation and an additional 10 supply protection on the basis of gender identity, students in most states are without protection of state law (see map here). The Student Nondiscrimination Act would provide a uniform standard of protection, one that would not be subject to the interpretation of federal courts or to the willingness of state legislatures. I hope to be able to provide many more updates to this post as the bill makes its way through Congress and the President and becomes the law of the land.
This law is sorely needed. GLSEN reports that 86.4% of LGBT students who responded to a 2007 school climate survey said they had been harassed in the past year. 60.8% said they felt unsafe at school because of their sexual orientation. Yet, there is no federal law protects students from discrimination on the basis of sexual orientation and gender identity, like there are for protected categories of sex (Title IX), race (Title VI of the Civil Rights Act, which applies to public accommodations), and disability (Rehabilitation Act, ADA). Some courts have interpreted Title IX and the Equal Protection Clause to protect LGBT students, but no uniform standard or scope of protection has resulted from these limited decisions. Additionally, while 14 states enumerate protection for students on the basis of sexual orientation and an additional 10 supply protection on the basis of gender identity, students in most states are without protection of state law (see map here). The Student Nondiscrimination Act would provide a uniform standard of protection, one that would not be subject to the interpretation of federal courts or to the willingness of state legislatures. I hope to be able to provide many more updates to this post as the bill makes its way through Congress and the President and becomes the law of the land.
Monday, January 5, 2009
Changes to Ledbetter Imminent in New Administration
President-elect Obama and Democrats in Congress will give high priority to legislation that would overturn the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire, yesterday's NY Times reported. In Ledbetter, the Court rejected that ongoing discrimination started a new statute of limitations every time it occurred. Thus, the plaintiff, Lilly Ledbetter, had to challenger her employer's salary decision, which she argued was discriminatory on the basis of sex in violation of Title VII, three months from when when her salary was first determined, rather than three months from any given paycheck. This interpretation of the statute of limitations is ridiculously stingy, since it often takes a little while before ongoing discrimination is apparent to a plaintiff. As a result plaintiffs are denied legal recourse in what may be valid discrimination cases, simply because the plaintiff they didn't notice the discrimination right away.
Because the Court's decision is based on an interpretation of a statutory provision, Congress can essentially void that interpretation by amending or superseding the statute in question. This is apparently exactly what the Democratic majority Congress, with the support of the new President, plan to do. Such anti-Ledbetter legislation would have an impact beyond employment discrimination cases under Title VII, as the decision has been used by lower courts to deny cases in a variety of civil rights contexts. We've seen one example already of the Ledbetter decision used to reject a Title IX suit filed by female wrestlers at the University of California at Davis, who tried to challenge discriminatory treatment that occurred between 2000 and 2001 and produced effects that lasted even longer. The lower court applied the Ledbetter rationale and a two year statute of limitations to conclude that a suit filed in 2003 was untimely -- the plaintiffs had to file two years from when the discriminatory treatment began in 2000. New legislation to restore the fairness of a longer statute of limitations would thus be beneficial to Title IX plaintiffs as well.
Because the Court's decision is based on an interpretation of a statutory provision, Congress can essentially void that interpretation by amending or superseding the statute in question. This is apparently exactly what the Democratic majority Congress, with the support of the new President, plan to do. Such anti-Ledbetter legislation would have an impact beyond employment discrimination cases under Title VII, as the decision has been used by lower courts to deny cases in a variety of civil rights contexts. We've seen one example already of the Ledbetter decision used to reject a Title IX suit filed by female wrestlers at the University of California at Davis, who tried to challenge discriminatory treatment that occurred between 2000 and 2001 and produced effects that lasted even longer. The lower court applied the Ledbetter rationale and a two year statute of limitations to conclude that a suit filed in 2003 was untimely -- the plaintiffs had to file two years from when the discriminatory treatment began in 2000. New legislation to restore the fairness of a longer statute of limitations would thus be beneficial to Title IX plaintiffs as well.
Friday, August 1, 2008
A Title IX for Disabled Athletes?
In July, political efforts to enhance opportunities for disabled student-athletes reached two noteworthy milestones.
First, a law in Maryland requiring schools to provide equal access to sports and physical education classes to disabled athletes -- the first of its kind -- went into effect. The Fitness and Athletics Equity for Students with Disabilities Act gives Maryland schools three years to figure out ways to ensure participation opportunities for athletes like Tatyana McFadden, a wheelchair athlete who became the issue's public face after she sued for the right to participate in on her high school's track & field team, as well as to make equipment and facilities accessible. The only limitation on schools' obligation applies when inclusion "presents an objective safety risk" to the student or others or "fundamentally alters the nature" of the class or athletic programs. Advocates of the new legislation, including McFadden's mother, are calling the law the Title IX for disabled athletes. And, it seems, the opposition to the law will also strike a chord familiar to Title IX advocates, as some are concerned that the inclusion mandate could dilute the opportunities for 'real' athletes (those with "championship aspirations" in the words of this columnist).
After Maryland's law, the second milestone in the area of disability rights occurred when both houses of Congress held briefings on whether a law like Maryland's should apply on the national level. Aimee Mullins, president of the Women's Sports Foundation, analogized the likely effect of such a law to that of Title IX, testifying that "a similar law for the disabled could have the same impact." Advocates acknowledge that their political efforts are only at the "starting point" but suggest that a good first step would be for the Government Accountability Office to conduct a study of discrimination against disabled athletes in phys ed and scholastic sports -- something that the office routinely does in the area of gender.
First, a law in Maryland requiring schools to provide equal access to sports and physical education classes to disabled athletes -- the first of its kind -- went into effect. The Fitness and Athletics Equity for Students with Disabilities Act gives Maryland schools three years to figure out ways to ensure participation opportunities for athletes like Tatyana McFadden, a wheelchair athlete who became the issue's public face after she sued for the right to participate in on her high school's track & field team, as well as to make equipment and facilities accessible. The only limitation on schools' obligation applies when inclusion "presents an objective safety risk" to the student or others or "fundamentally alters the nature" of the class or athletic programs. Advocates of the new legislation, including McFadden's mother, are calling the law the Title IX for disabled athletes. And, it seems, the opposition to the law will also strike a chord familiar to Title IX advocates, as some are concerned that the inclusion mandate could dilute the opportunities for 'real' athletes (those with "championship aspirations" in the words of this columnist).
After Maryland's law, the second milestone in the area of disability rights occurred when both houses of Congress held briefings on whether a law like Maryland's should apply on the national level. Aimee Mullins, president of the Women's Sports Foundation, analogized the likely effect of such a law to that of Title IX, testifying that "a similar law for the disabled could have the same impact." Advocates acknowledge that their political efforts are only at the "starting point" but suggest that a good first step would be for the Government Accountability Office to conduct a study of discrimination against disabled athletes in phys ed and scholastic sports -- something that the office routinely does in the area of gender.
Friday, February 1, 2008
How the Civil Rights Act of 2008 Would Change Title IX
This week Democrats in the House and Senates introduced the Civil Rights Act of 2008 (H.R. 2159 & S. 2554). In a variety of contexts, this bill would strengthen civil rights protection and/or restore such protections that have been undermined by recent Supreme Court decisions. Some aspects of this proposed legislation would affect Title IX. One would make it easier to state a cause of action for harassment. Another would confirm that plaintiffs can sue schools for unintentional discrimination that has a disparate impact. I will address each one of these in turn.
I. Harassment
The Civil Rights Act of 2008 would make it easier for students to bring sexual harassment claims against educational institutions receiving federal funds. As noted in the bill, the Supreme Court decisions regarding sexual harassment under Title IX, Gebser and Davis, limit schools' liability to only those instances of harassment about which they had actual notice, acted with deliberate indifference, and which were so severe and pervasive to preclude victims' access to educational programs.
The proposed legislation would "reverse Gebser and its progeny and restore the availability of a full range of remedies for harassment" on the basis of sex, as well as harassment on the basis of race, age, and disability. Specifically, the statute would allow harassment victims to seek money damages against a school unless the school can show that it acted with "reasonable care"and that the victim "unreasonable failed to take advantage" of preventive or corrective opportunties offered by the school that would have likely prevented the harm.
In this article posted by the American Constitution Society, NWLC's Fatima Goss Graves makes a compelling case in support of this reform. She provides examples of real court decisions that dismissed victims' claims under the deliberate indifference standard, but would likely have come out differently had the courts applied a reasonable care standard instead.
II. Disparate Impact
In 2001, the Supreme Court held that plaintiffs did not have a private right of action under Title VI, the statute prohibiting race discrimination in public entities, to sue a covered entity for discrimination that was unintentional but had a disparate impact on members of the plaintiffs' race. Ever since then, the right of action to bring disparate impact claims under other civil righs statutes, including Title IX, has been in question. Prior to the 2001, for example, a court had held that female applicants to a scholarship program could challenge the program's reliance on a standardized test on which men tended to do better. After 2001, similar disparate impact challenges are likely foreclosed.
The Civil Right Act of 2008 would "reinstat[e]" that right of action for Title VI claims and "confirm[]" that right for other civil rights statute. Specifically, the statute would allow a plaintiff to maintain a cause of action against a school if the plaintiff can show that the school "has a policy or practice that causes a disparate impact on the basis of sex and that the [school] fails to demonstrate that the challenged policy or practice is related to or necessary to achieve the nondiscriminatory goals of the program or activity alleged to have been operated in a discriminatory manner."
The bill is now being considered by appropriate committees in each house.
h/t Feminist Law Profs
See also Workplace Prof Blog
I. Harassment
The Civil Rights Act of 2008 would make it easier for students to bring sexual harassment claims against educational institutions receiving federal funds. As noted in the bill, the Supreme Court decisions regarding sexual harassment under Title IX, Gebser and Davis, limit schools' liability to only those instances of harassment about which they had actual notice, acted with deliberate indifference, and which were so severe and pervasive to preclude victims' access to educational programs.
The proposed legislation would "reverse Gebser and its progeny and restore the availability of a full range of remedies for harassment" on the basis of sex, as well as harassment on the basis of race, age, and disability. Specifically, the statute would allow harassment victims to seek money damages against a school unless the school can show that it acted with "reasonable care"and that the victim "unreasonable failed to take advantage" of preventive or corrective opportunties offered by the school that would have likely prevented the harm.
In this article posted by the American Constitution Society, NWLC's Fatima Goss Graves makes a compelling case in support of this reform. She provides examples of real court decisions that dismissed victims' claims under the deliberate indifference standard, but would likely have come out differently had the courts applied a reasonable care standard instead.
II. Disparate Impact
In 2001, the Supreme Court held that plaintiffs did not have a private right of action under Title VI, the statute prohibiting race discrimination in public entities, to sue a covered entity for discrimination that was unintentional but had a disparate impact on members of the plaintiffs' race. Ever since then, the right of action to bring disparate impact claims under other civil righs statutes, including Title IX, has been in question. Prior to the 2001, for example, a court had held that female applicants to a scholarship program could challenge the program's reliance on a standardized test on which men tended to do better. After 2001, similar disparate impact challenges are likely foreclosed.
The Civil Right Act of 2008 would "reinstat[e]" that right of action for Title VI claims and "confirm[]" that right for other civil rights statute. Specifically, the statute would allow a plaintiff to maintain a cause of action against a school if the plaintiff can show that the school "has a policy or practice that causes a disparate impact on the basis of sex and that the [school] fails to demonstrate that the challenged policy or practice is related to or necessary to achieve the nondiscriminatory goals of the program or activity alleged to have been operated in a discriminatory manner."
The bill is now being considered by appropriate committees in each house.
h/t Feminist Law Profs
See also Workplace Prof Blog
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