Sexual orientation

Christian college leaders urged to embrace religious (and other) pluralism

At annual conference in divided nation’s capital, speakers urge presidents of Christian colleges to join (and lead) efforts to embrace, and work through, fundamental differences.

UT-Austin scrutinizes ethics of controversial same-sex parenting study

UT-Austin launches administrative inquiry into integrity of controversial study about children of same-sex couples.

Philosophers should recognize the serious risks trans people face (opinion)

In 1702, the New England Puritan Cotton Mather produced a theological/philosophical reflection on the nature of the American continent and its inhabitants. He asserted that the heathen savages that Europeans had met here were probably put here by the devil, likely lacked souls, were more akin to beasts than humans and absolutely must be at least converted, and if not, removed (i.e. killed).

Now I take it that no current philosopher would be so intellectually dense and morally obtuse as to describe that reflection merely as “arguing for positions on a core metaphysical issue -- the nature of persons.” One can imagine contexts in which such views would merely be laughably stupid and offensive. But at the dawn of the 18th century, as a mass influx of Europeans are launching one of the largest campaigns of ethnic cleansing and genocide in human history, these remarks are violence. They are an endorsement of genocide and played a very real role in facilitating it.

Recently, a small but highly visible group of scholars has taken to arguing against the growing acceptance of the gender self-identifications of trans people -- insisting that trans women are really men, trans men really women, trans lesbians really heterosexual men and so forth -- and often explicitly presenting these arguments as support for legal efforts to restrict trans folks' access to public spaces. This has led others to sharply criticize such "gender-critical" positions, and even to call for boycotts and deplatforming of those defending them. In response, 12 "leading scholars" wrote an open letter in Inside Higher Ed asserting that such calls were an assault on academic freedom and that such criticisms counted as unacceptable abuse.

I do not suggest that the current situation around TE“RF” philosophers is as grim as the genocide of Native Americans. (Note: Prior to public criticism of their exclusionary views, these scholars were happy to identify as “trans-exclusionary radical feminists.” Once the position had been denounced by serious feminist scholars and called out as hostile and abusive, a rebranding was attempted and they now prefer "gender-critical feminists." The latter term, however, is far less descriptive and obviously prejudicial. At the same time, while the whole point is to be trans-exclusionary, I would deny that the reactionary exclusion of various women from the category "woman" is either radical or feminist. Hence my use of TE“RF.”) Obviously, there are differences of quantity, and some of content, between what happened to Native Americans in the 1700s and what's occurring in academe today.

But when trans folks are systematically reviled, mocked and disempowered; when they are disproportionately harassed by police, arrested and brutalized -- both on the street and in custody -- and when there are active campaigns or existing laws in many countries to deny them basic human rights, one cannot merely have a polite discussion about the nature of gender and sex. To produce arguments, in this context -- that trans women are not women, or trans lesbians are not lesbians -- is not just a view we can easily reject as confused and offensive. It is complicity with systemic violence and active encouragement of oppression.

And to write pompous open letters about efforts to combat such complicity without mentioning any of the relevant context, to write as if this is simply an abstract question of academic freedom, to pretend that the cisgendered deniers of trans rights are the real victims because others criticize them is not nearly far enough from our hypothetical reaction to Cotton Mather.

It is difficult for me to see how highly educated, highly intelligent people can fail to see these obvious points. Perhaps they do, or perhaps something more complicated or more sinister is going on. I don’t know, or really care, what is behind it. But everyone who cares about the current victims of social and institutional bigotry needs to denounce it.

It is not permissible to debate the lives of people who are oppressed and murdered. Those who treat this like an intellectual game should not be engaged with. They should be told to [unprintable here] -- just as I hope we would respond to Cotton Mather. Every time.

Mark Lance is professor of philosophy, professor of justice and peace, and co-director of the program on justice and peace studies at Georgetown University.

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How to support LGBTQI students who disclose experiences of sexual violence (essay)

Sexual Assault on Campus

Jackson Wright Shultz provides suggestions on how to support LGBTQI students who disclose experiences of sexual or intimate partner violence.

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The importance of supporting LGBTQI students who have been victimized (essay)

Few resources exist that specifically deal with relationship violence within LGBTQI college populations, writes Jackson Wright Shultz, who provides advice to help change that situation.

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Will Title IX be reinterpreted following ruling on sexual orientation discrimination? (essay)

A federal court of appeals’ recent decision to extend Title VII’s protection to sexual-orientation employment discrimination undoubtedly changes the legal landscape in which employers, including institutions of higher education, operate within the Seventh Circuit (Illinois, Indiana and Wisconsin). Given the tendency of courts to look to interpretations of Title VII when making legal rulings under Title IX, this new decision also opens the question of whether courts will begin interpreting Title IX to also prohibit sexual-orientation discrimination.

For example, several federal courts have rejected claims by students alleging that they were subjected to harassment by other students in the form of epithets about their sexual orientation and that the educational institutions failed to adequately respond. Courts, by and large, rejected these claims outright, finding that Title IX does not protect against sexual-orientation discrimination.

Similarly, in 2004, a student and member of the women’s basketball team at North Central College in Naperville, Ill., asserted that she was subjected to harassment because she was heterosexual. Specifically, she alleged that her playing time was reduced, that she was treated differently and criticized more by the coaching staff, and that she ultimately had to leave the team as a result. Finding that Title IX did not protect against discrimination based on sexual orientation, the court dismissed the claims. Importantly, that court’s analysis looked specifically to the Seventh Circuit’s old Title VII cases to find that Title IX similarly did not protect against sexual-orientation discrimination.

The Seventh Circuit’s break with its own prior interpretation of Title VII -- and the interpretation of all other courts of appeals to have evaluated the issue -- likely sets up a question ultimately bound for resolution by the Supreme Court. Absent some expedited action, however, that decision is unlikely to come any sooner than early 2018. Thus, other lower federal courts across the country will have the opportunity to decide several related questions, including whether they are willing to follow the Seventh Circuit’s reasoning and extend it to the Title IX context.

Title VII’s Relationship With Title IX

Title VII of the Civil Rights Act of 1964 is a federal employment-discrimination statute. As relevant here, Title VII makes it illegal for an employer -- including educational institutions -- “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.”

Title IX of the Education Amendments Act of 1972 provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Thus, while the statutes use slightly different language, they both prohibit sex discrimination. And courts have found the similarities in these statutes significant, frequently commenting that Title VII interpretations should guide courts in their interpretation of Title IX. As the Eighth Circuit explained, for example, although Title VII protects against “discrimination … because of … sex” whereas Title IX protects against discrimination “on the basis of sex,” “these two phrases are treated interchangeably.” Thus, the court concluded that the “interpretation of Title VII properly informs our examination of Title IX.”

Accordingly, if the Seventh Circuit (or some other court inclined to follow the recent Title VII decision) is faced with the question of whether Title IX prohibits discrimination on the basis of sexual orientation, the implications would seem clear: the term “sex” discrimination in Title VII (according to the Seventh Circuit) includes “sexual orientation” discrimination; Title IX is interpreted like Title VII; therefore Title IX also prohibits sexual-orientation discrimination. But perhaps this inquiry isn’t quite so simple.

Not So Fast

Although courts generally look to Title VII when interpreting similar provisions in Title IX, would that principle apply even in the circumstance that some see as making a fundamental change to the statute, such as adding sexual-orientation discrimination to the ambit of protection? Although this approach is compelling in its simplicity, there are some differences that may complicate the analysis.

The first difference is how the statutes were originally enacted. Congress enacted Title VII pursuant to its power under the Constitution’s Commerce Clause, which gives Congress a large amount of authority to impose its directives. Title IX, in contrast, was enacted pursuant to Congress’s authority under the Spending Clause. While this may seem like a minor distinction, the Supreme Court has explained that because Title IX is Spending Clause legislation, Congress must give institutions sufficient notice of the conduct it decides to prohibit. In other words, Title IX operates “much in the nature of a contract: in return for federal funds, the states agree to comply with federally imposed conditions.”

Based on this distinction, institutions will likely argue they had no notice that discrimination “on the basis of sex” included sexual-orientation discrimination. This argument may also be aided, oddly enough, by a discussion in the recent Seventh Circuit case, where the majority opinion explains that, while Congress (when it enacted the statute) may not have understood the full reach of preventing discrimination based on “sex,” that fact does not prevent Title VII’s protections from expanding. While many people will disagree with that decision in any context, it is particularly difficult to transpose it to Spending Clause legislation (like Title IX) where Congress is required to speak with a “clear voice” to provide institutions with notice as to what conduct the statute proscribes.

The second difference is how the statutes were structured. Title VII is a statute designed to provide remedies to employees suffering discrimination. The statute specifically identifies judicial and administrative recourse for alleged violations. Conversely, Title IX is primarily a regulatory statute, designed to ensure that institutions receiving federal funds are compliant with Congress’s prohibitions on sex discrimination. In fact, Title IX does not expressly allow individuals to sue institutions (a “private right of action”). Rather, the Supreme Court later found that right to be implied under the language of Title IX.

These structural differences may give courts pause when determining whether to follow the Seventh Circuit’s Title VII decision and conclude that Title IX protects against sexual-orientation discrimination. To be sure, federal courts to date have largely rejected attempts to extend Title IX liability to cases of alleged sexual-orientation discrimination, though there are isolated examples of courts ruling that Title IX’s protections do encompass such allegations. For example, in Videckis v. Pepperdine University, a federal district court in California found other courts’ distinction between “gender stereotyping” claims and “sexual orientation” claims to be “illusory and artificial,” and ultimately concluded that Title IX does protect against sexual-orientation discrimination. Institutions will now need to observe analogous cases closely to see if the Seventh Circuit’s Title VII decision makes similar rulings more prevalent.

The Tip of the Iceberg

Determining whether Title IX protects against sexual-orientation discrimination will be an important and consequential decision. But answering that question also opens the door to several additional difficult and complex legal questions.

For example, it seems likely that the lion’s share of objections to any extension of Title IX to include sexual-orientation claims would be grounded in religious beliefs. Title VII contains a limited religious exemption for certain employers, taking certain actions, with respect to certain classes of employees; Title IX, in contrast, contains a broad clause that exempts institutions from Title IX if they are controlled by a religious organization and “if the application of this subsection would not be consistent with the religious tenets of such organization.” Given the broad exemption language found in Title IX, courts will likely be forced to grapple with exemptions sought under this subsection, as well as protections provided by other statutes and the Constitution.

In addition, as discussed above, Title IX is largely a regulatory statute, and its provisions are commonly carried out by the U.S. Department of Education. In an official guidance document issued in 2001 (and still in force today), the department expressly stated that Title IX does not protect against sexual-orientation discrimination. In certain circumstances when agencies issue guidance on an ambiguous statutory term, courts are required to follow any reasonable conclusion reached by the agency. If courts, therefore, are inclined to follow the Seventh Circuit’s Title VII decision, they will first have to determine how to evaluate the department’s contrary conclusion.

Finally, colleges and universities may be concerned about the potential ability for people to bring claims for violations of both Title VII and Title IX. Unfortunately, the regional federal courts of appeals are currently split on this question as well. Some courts allow claimants to proceed under both statutes; others prohibit this approach, finding that Title VII displaces Title IX when there are overlapping claims. Thus, institutions should be aware of the rule in their circuit and track relevant decisions.

The Seventh Circuit’s decision to break from its own prior cases, as well as the decisions of all other federal courts of appeals, opens up a Pandora’s box of tricky legal issues, especially for institutions of higher education. Acting in the dual role of employer and educator, the vast majority of higher education institutions find themselves subject to both Title VII and Title IX, including any potential expansion of those statutes to incorporate protections for sexual orientation. These issues seem destined for a date at the Supreme Court, which, eventually, may bring some much-needed clarity. Until then, however, institutions should diligently monitor legal developments in the federal courts to ensure they are compliant with the applicable law in their jurisdiction.

Michael T. Raupp is a lawyer in the Kansas City, Mo., office of Husch Blackwell LLP. He is a member of the firm’s higher education group and frequently practices in federal and state appellate courts.

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Tuesday, April 25, 2017
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Transgender Employees Sue Wisconsin System

The University of Wisconsin System is being sued by two of its transgender employees because the system and the state insurance board will no longer cover gender reassignment surgeries, The Associated Press reported.

Both employees identify as female and work at the Madison campus, one as an anthropology graduate student and the other as a cancer researcher. The American Civil Liberties Union filed a federal lawsuit last week on their behalf.

Because both employees are on the university’s health insurance plan and that plan no longer covers medical procedures surrounding gender dysphoria -- the condition in which someone feels they were born into the body of the wrong sex -- they are accusing the university and insurance board of discrimination by sex and gender.

“Too many transgender people continue to face discrimination in all facets of life, including health care access, and so I felt compelled to stand up and try to do something about it,” one of the plaintiffs, Alina Boyden, said in a news release.

Last summer, the state’s insurance board added benefits for gender dysphoria that could account for up to $150,000, but in December, before the benefits went into effect, the board voted to exclude the benefits.

Both plaintiffs have been advised by their primary care physicians to seek gender reassignment surgery. Without coverage under their university insurance plans, they would either have to opt out of the procedures or pay thousands of dollars out of pocket.

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Minority Students at Greater Risk of Sexual Assault

Not only are racial, sexual and gender minority groups more likely to be victims of sexual assault, students who consider their colleges inclusive and tolerant are less likely to be victims, two new complementary studies found.

Published recently in the Journal of Interpersonal Violence and Prevention Science, the studies reveal how populations with intersecting minority identities may be at greater risk of sexual assault, emphasizing the need for more sexual assault research and prevention and treatment programs that address specific marginalized groups.

One study, led by a team from the University of Pittsburgh Graduate School of Public Health, was based on surveys from over 70,000 undergraduate students attending 120 higher education institutions between 2011 and 2013.

The team found that women were 150 percent more likely than men to be sexually assaulted, but that transgender people were at much greater risk -- 300 percent more likely than cisgender men to be sexually assaulted.

Gay, bisexual and black men all had higher odds of being sexually assaulted than heterosexual and white men. Black women were more likely than white women to be sexually assaulted, but Asian and Latina women were less likely.

Black transgender people were more likely than white transgender people to be assaulted as well.

The lead author of both studies said this is the first research of its kind to identify ways that intersecting marginalized populations are at greater risk of being sexually assaulted.

In the second study, the team analyzed surveys from 2,000 undergraduate students across all 50 states who identify as part of a sexual or gender minority population. The students who felt that their campus was inclusive and welcoming were found to be 27 percent less likely to be sexually assaulted.

Based on these results, the researchers suggested that such inclusive campus environments might encourage students to speak up and stop a sexual assault if they see one happening or to be more cautious in certain high-risk environments, like events that include drugs and alcohol.

"If sexual assault prevention efforts solely focus on heterosexual violence, they may invalidate sexual- and gender-minority people's assault experiences and be ineffective for them," said Robert Coulter, lead author of the two studies and a doctoral candidate in Pitt Public Health’s Department of Behavioral and Community Health Sciences. "To overcome this, existing programs could be augmented to explicitly address homophobia, biphobia, transphobia and racism. And new interventions could be created specifically for sexual, gender, racial and ethnic minorities."

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Student expelled for being gay and charged $6,000 in back tuition protests with online petition

A student expelled for having a lesbian relationship and ordered to repay $6,000 in scholarship money is fighting back.

Appeals court: HR administrator's controversial op-ed not protected speech

Appeals court says University of Toledo had right to fire human resources director for op-ed questioning legitimacy of gay rights.

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