The University of North Carolina system told a federal court that it would not enforce a law requiring transgender students to use restrooms corresponding to the sex on their birth certificates.
The declaration came in a motion on May 27 asking a federal court to halt civil legal proceedings against the university system while a higher court decides a separate case on transgender rights from Virginia.
University system President Margaret Spellings, who served as George W. Bush’s administration, wrote in an affidavit that, pending the outcome of the North Carolina case: “I have no intent to exercise my authority to promulgate any guidelines or regulations that require transgender students to use the restrooms consistent with their biological sex.”
The university system’s lawyers went further, noting in a filing that the state law contains no enforcement mechanism and the university system also hasn’t “changed any of its policies or practices regarding transgender students or employees.”
“There is nothing in the Act that prevents any transgender person from using the restroom consistent with his or her gender identity,” the lawyers wrote.
They ask the federal judge to halt proceedings against the university system pending the outcome of a case on transgender rights being heard by the 4th Circuit Court of Appeals in Virginia as well as a separate case by the federal Department of Justice against North Carolina.
Five dueling cases over the law are pending in federal courts in North Carolina.
The UNC System had been named as a defendant along with Gov. Pat McCrory in a case filed on behalf of plaintiffs including students and university employees. Plaintiffs say the law requiring them to use restrooms matching the sex on their birth certificate is discriminatory.
Separately, a three-judge panel of the Virginia appeals court gave a favorable ruling to a transgender student seeking to use high school restrooms in line with his gender identity. The Virginia school board he sued has asked for a new hearing before the full appeals court. That case hinges on a federal anti-discrimination law that’s also central to the North Carolina cases.
The North Carolina law enacted in March requires transgender people to use restrooms corresponding with the sex on their birth certificate in public schools, universities and many other public buildings. It also excludes gender identity and sexual orientation from statewide anti-discrimination protections.
In a recent letter, McCrory asked Congress to clarify U.S. Civil Rights Act protections. The May 18 letter to U.S. House and Senate leaders asks them to act in light of Justice Department and Education Department instructions stating the federal law’s protections apply to sexual orientation and gender identity. McCrory disagrees.
Friday’s filings go a step further than previous statements by Spellings, who had lamented in a May 9 letter to the Justice Department that the system was “in a difficult position” caught between state and federal laws.
“Spellings is just being whipsawed,” said Carl Tobias, a law professor at the University of Richmond. “She’s in a tough spot, as is the system. They’re trying to do the best they can by their different constituencies.”
He said the request for a stay was sensible considering that the outcome of the Virginia case will likely dictate how the federal judges decide the North Carolina lawsuits.
“The district judges in North Carolina are probably not going to do anything other than what the 4th Circuit says,” he said.
As part of the U.S. government’s ongoing efforts to comply with the U.S. Supreme Court’s ruling against Section 3 of the Defense of Marriage Act in United States v. Windsor, the Education Department on Dec. 13 announced new guidance on the use of “marriage” and “spouse” in the federal student aid programs, including on the completion of the FAFSA, the federal student aid form.
The U.S. Supreme Court in June struck down the part of DOMA that banned the federal government from recognizing same-sex marriages, resulting in the withholding of more than 1,100 rights and benefts.
Now the Education Department will recognize a student or a parent as legally married if the couple was married in any jurisdiction that recognizes the marriage, regardless of whether the marriage is between a couple of the same sex or opposite sex, and regardless of where the student or couple lives or the student is attending school. This guidance impacts all questions concerning marriage and marital status on the FAFSA.
Before the court’s ruling, the Education Department had interpreted all provisions of Title IV of the Higher Education Act – which authorizes the federal student aid programs – consistent with Section 3 of DOMA, which prohibited all federal agencies from recognizing same-sex marriages. This meant that while a student under 24 who was married to an opposite sex spouse was considered independent for financial aid purposes, that same student would have been considered dependent if he or she was married to a same-sex spouse because the marriage was not previously recognized. In Windsor, the Supreme Court held that Section 3 of DOMA is unconstitutional because it violates the principles of due process and equal protection.
“We must continue to ensure that every single American is treated equally in the eyes of the law, and this important guidance for students is another step forward in that effort,” said U.S. Secretary of Education Arne Duncan. “As students fill out their FAFSA this coming year, I’m thrilled they’ll be able to do so in a way that is more fair and just.”
Earlier this year, the ACLU and the ACLU of Wisconsin asked the U.S. Department of Education Office of Civil Rights to investigate the Beloit School District after analyzing documents obtained in an open records request.
The ACLU said two Beloit elementary schools offer programs that violate state and federal laws, forcing students into single-sex environments and employing educational concepts based on gender stereotypes.
The ACLU also had asked the Education Department to investigate the Barron Area School District.
The investigation is pending in Beloit, but the Education Department won’t be acting on the Barron complaint because, at the time of the filing, the district had suspended the program, said ACLU of Wisconsin communications director Sarah Karon.
The ACLU said the documents showed that both Wisconsin programs were influenced by the ideas of psychologist Leonard Sax. His theories about boys and girls having different kinds of brains and being hardwired to learn differently have been debunked.
Sax, the author of “Boys Adrift” and “Girls on the Edge” and the founder of the National Association for Choice in Education, has said girls do badly under stress so they should not be given time limits on tests. And boys who like to read, don’t like contact sports or lack close male friends should be firmly disciplined and required to spend time with “normal males” and play sports, he has suggested.
Galen Sherwin, a senior staff attorney for the ACLU Women’s Rights Project, said it’s harmful for schools to promote such stereotypes, “particularly with children who are so young.”
In its letter regarding Beloit, the ACLU asks for enforcement of “federal laws that prohibit discrimination based on sex in schools.”
“There is no solid evidence supporting the assertions that the supposed differences between boys’ and girls’ brains on which these programs are based (exist), and there is absolutely no evidence that teaching boys and girls differently leads to any education improvements,” Sherwin said in a statement.
The U.S. Justice Department announced on July 24 that it had reached a settlement agreement with the Arcadia Unified School District in Arcadia, Calif., to resolve an investigation into allegations of discrimination against a transgender student based on the student’s sex.
Under the agreement, approved by the district’s school board on July 23, the district will take steps to ensure that the student, whose gender identity is male, will be treated like other male students while attending school in the district, according to a statement from the White House.
The agreement, joined by the U.S. Education Department Office for Civil Rights, resolves a complaint filed in October 2011. The complaint alleged that the district prohibited the student from accessing facilities consistent with his male gender identity, including restrooms and locker rooms at school, as well as sex-specific overnight accommodations during a school-sponsored trip.
The U.S. investigated the complaint under Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964. Both measures prohibit discrimination against students based on sex.
Under the settlement agreement, the district will:
• Work with a consultant to create a safe, non-discriminatory learning environment for students who are transgender.
• Amend its policies and procedures to reflect that gender-based discrimination, including discrimination based on a student’s gender identity, transgender status and nonconformity with gender stereotypes, is a form of discrimination based on sex.
• Train administrators and faculty on preventing gender-based discrimination and creating a non-discriminatory school environment for transgender students.
“All students, including transgender students, have the right to attend school free from discrimination based on their sex,” stated Jocelyn Samuels, acting assistant Attorney General for the Civil Rights Division at the Justice Department. “We commend the district for taking affirmative steps to ensure that this student and his peers can continue to learn and thrive in a safe and nondiscriminatory environment.”
In recent years, the Justice Department and the Department of Education resolved a number of cases involving gender-based harassment in public schools.
In 2012, the departments entered into a consent decree addressing harassment against students who do not conform to gender stereotypes in the Anoka-Hennepin School District, Minn.
In 2011, the departments entered into an agreement with the Tehachapi Unified School District, Calif., to resolve a similar complaint of harassment against a gay student who did not conform to gender stereotypes.
U.S. Rep. Linda Sanchez this week introduced the Safe Schools Improvement Act, which would amend the Elementary and Secondary Education Act to require schools and districts receiving federal funds to adopt codes of conduct specifically prohibiting bullying and harassment, including on the basis of actual or perceived sexual orientation and gender identity.
The measure also would require that states report data on bullying and harassment to the U.S. Department of Education, according to the Human Rights Campaign, the nation’s largest LGBT civil rights group.
Chad Griffin, president of HRC, said on March 14, “Bullying remains an epidemic in our schools and occurs at alarming rates based on sexual orientation and gender identity. We thank Congresswoman Sanchez for her continued leadership in protecting our nation’s young people by once again introducing the Safe Schools Improvement Act.”
Sanchez, in a news release, said, “We owe it to our children to protect them and make sure they have a safe and comfortable learning environment at school. We are failing our students if they are afraid to come to school because they face daily threats and intimidation. Bullying can destroy a student’s self-esteem and wreck their academic progress. No child deserves to be bullied or harassed, and it’s time we made this violent and destructive behavior a relic of the past.”
LGBT-inclusive laws against the harassment and bullying of K-12 students exist in 17 states and the District of Columbia. Every other state, with the exception of Montana, has a law against bullying but lists no categories of protection.
HRC said the lack of enumeration in these state laws often means a lack of protections for LGBT students, who face abuse at a higher rate than other students. A recent survey found more than half of LGBT youth say they have been verbally harassed and called names involving anti-gay slurs.
The Senate version of the Safe Schools Improvement Act was introduced in February by Democrat Bob Casey and Republican Mark Kirk.
Longtime gay rights activist Kevin Jennings has been hired to lead The Arcus Foundation, a leading global foundation on social justice and conservation issues.
The foundation announced the appointment of Jennings as executive director in a news release on July 13. He starts work there in September.
Jennings currently is the CEO of Be the Change, Inc., where he was instrumental in launching the “Opportunity Nation” campaign to promote economic opportunity and social mobility in the United States.
“Kevin brings an impressive set of experiences, skills and accomplishments that are perfectly suited to our goals and complemented by a record of infectious leadership,” said Arcus founder and president Jon Stryker. “His qualifications and lifelong commitment to the work and values that are at the core of Arcus make him a natural and compelling choice.”
“I have had tremendous exposure to and admiration for the Arcus Foundation’s work since its founding 12 years ago,” Jennings said in a news release. “I could not be more excited about joining the team and helping to advance the Foundation’s ambitions for justice and humanity, which map so closely to my own.”
Jennings has served as assistant deputy secretary of education under President Barack Obama.
He also founded and led the Gay, Lesbian and Straight Education Network, the leading national education organization focused on ensuring safe schools for all students and educators.
Prior to founding GLSEN, Jennings taught high school history at the Moses Brown School in Providence, R.I., and at Concord Academy in Concord, Mass., where he was the faculty advisor of America’s first gay-straight alliance.
Jennings also was instrumental in promoting gay history month in October.
The U.S. Justice and Education departments and six student plaintiffs announced a tentative settlement with Minnesota’s Anoka-Hennepin School District in a complaint of sex-based harassment.
A proposed consent decree was filed March 5 in the U.S. District Court for the District of Minnesota. The agreement would resolve complaints of sex-based harassment of middle and high school students in the school district. Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 each prohibits sex-based harassment, including harassment based on nonconformity with gender stereotypes and sexual harassment.
In November 2010, Justice received a complaint alleging that students in the school district were being harassed by other students because they didn’t dress or act in ways that conform to gender stereotypes.
Justice and Education officials conducted an investigation into sex-based harassment and heard from students who reported that an unsafe and unwelcoming school climate inhibited their ability to learn.
A news release from the U.S. government said the departments and the district “worked collaboratively to draft a consent decree addressing and resolving the allegations in the complaints.”
If approved by the court, the consent decree will ensure that the school district:
• Retains an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment.
• Develops and implements a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools.
• Enhances and improves its training of faculty, staff and students on sex-based harassment.
• Hires or appoints a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX.
• Retains an expert consultant in the area of mental health to address the needs of students who are victims of harassment.
• Provides for other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts.
• Improves its system for maintaining records of investigations and responding to allegations of harassment.
• Conducts ongoing monitoring and evaluations of its anti-harassment efforts.
• Submits annual compliance reports to the departments.
The consent decree will remain in place for five years.
“Harassment by or against students in schools is unacceptable, and not a ‘rite of passage’ to be endured by anyone,” said Thomas Perez of Justice.
U.S. Attorney B. Todd Jones said, “Nearly 40,000 students in the Anoka-Hennepin School District will benefit from this consent decree. Schools must be safe places for all students. Bullying of any kind cannot be tolerated. To that end, the Anoka-Hennepin School District took great strides today.”