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“How Baylor Happened”

From Deadspin:

There’s not much to recommend spending four years in Waco. Driving into town up Interstate 35 from the south, the endless stretch of Texas nothing fills out slowly. It’s flat in the way you think Texas is flat. Empty fields give way to John Deere dealerships, then fast-food chains.

On your left, you’ll see the strip mall that housed the Twin Peaks biker gang shootout of 2015. Pass through the city’s squat downtown, and you can catch a glimpse of the grain silos that Chip and Joanna Gaines, stars of the HGTV smash Fixer-Upper, converted into the retail base of their reality TV empire.

But then, rising from the banks of the Brazos River, appears Baylor’s towering McLane Stadium. The building serves to announce the home of the Baylor Bears, Robert Griffin III, the Heisman Trophy, and a football legacy stretching back to, well, RG3 and the Heisman Trophy. But that’s the point. Baylor is here. Baylor matters, finally. The other campus buildings are tucked away in the short hills along the highway, but the stadium declares itself forcefully.

For most of its history, football barely registered at Baylor. Instead, the school cultivated its own culture, deeply rooted in the Baptist church. It banned dancing on campus until 1996. Until May 2015, its student conduct code listed “homosexual acts” and “fornication” as expressly forbidden behavior, alongside “sexual abuse, sexual harassment, sexual assault,”and other activities. Sex outside of marriage is still forbidden. The university’s mission statement says it was “founded on the belief that God’s nature is made known through both revealed and discovered truth.” Even a teenager who’s been homeschooled her entire life can walk around Baylor, see the statues of Jesus and the sidewalks emblazoned with Bible passages, and feel safe that the university that speaks her language and shares her values.

Jane’s* parents celebrated when she was offered a soccer scholarship to Baylor. She’d be among other Christians, less than two hours away from their Dallas home. Alicia* was drawn to Baylor because she wanted something to bring her back to her faith. She wanted to attend chapel with her classmates, to feel the closeness of a religious institution. “I want to feel God on campus and in class,” she knew. “I want to come here to be with God in every sense of the matter.”

Melissa* had attended a small private Baptist high school in California. She was scared to attend a party school and was looking for a more conservative university. She liked how nice everyone at Baylor was, and that dorm visiting hours ended at midnight, even on weekends. Suzanne* was the daughter of missionaries. She grew up mostly overseas and spent a lot of time in Christian boarding schools in Papua New Guinea. College wasn’t something her parents expected of her—everyone in her family did church work—but she wanted to be a missionary doctor.

They all chose Baylor because it felt safe.

What they didn’t know when they enrolled was that the combination of Baylor’s culture and a set of newly-established ambitions had created a university that was unusually safe—but not for them. It was a safe place for football coaches who could do no wrong, for players whose transfers from other teams after being accused of violence were billed as the first half of a redemption story, for young men whose potential was prioritized over that of their female classmates, and for university leaders who prized their reputation over the safety of the women who studied there.

As Jane was beginning her senior year of high school, already committed to play soccer at Baylor in 2013, the university was breaking ground on McLane Stadium. Baylor had a vision for itself—to become the Baptist answer to Notre Dame—but accomplishing that would require money, a lot more money, and fast football success was also a fast way to excite major donors. Greed is not a Christian value, but as the world would soon find out, the school’s commitment to the religion of football would serve to undermine everything else that the university was supposed to stand for.

What follows is a long and detailed look into how Baylor, a small Baptist university where football was played, became Baylor, a blossoming national football powerhouse where female students were repeatedly assaulted by football players and no one cared until it finally became a scandal. I’m oversimplifying here, but that’s close enough for these purposes. Authors Jessica Luther and Dan Solomon have been the go-to reporters for documenting how and why it all happened, and you should read what they have to say.

Anticipating the future bathroom-related litigation

It will be a matter of when, not if, should a bathroom bill passes.

[B]oth sides agree if any version of the bathroom bill becomes law, it will likely trigger a protracted legal battle that could have implications for the transgender community in Texas and nationwide.

“If it does in fact pass, it will be a big test for civil rights organizations,” said Anthony Kreis, an assistant professor at the Illinois Institute of Technology’s Chicago-Kent College of Law. “It will also be a huge, landmark case in the courts to test the scope and limits of transgender rights in this county.

Senate Bill 3 and Senate Bill 91, authored by Brenham Republican Lois Kolkhorst, are nearly identical. They would both require public and charter schools to ensure that every multiple-occupancy bathroom, shower and locker room “be designated for and used only by persons of the same sex as stated on a person’s birth certificate.”

A few schools in Texas allow transgender students to use the bathroom that matches their gender identity, according to Joy Baskin, legal director for the Texas Association of School Boards. But Kolkhorst’s bills would force trans girls, for example, who are born male but identify as female to use either a private, single-stall bathroom or the boys’ restroom.

School districts would also not be able to protect athletes from discrimination, unless they are already covered under state or federal law, such as Title IX. Courts in other parts of the country have ruled Title IX’s prohibitions on sex discrimination against female athletes also apply to transgender students. But there’s been no similar decision that applies here in Texas.

The University Interscholastic League, which regulates most high school sports, already segregates competition based on the sex listed on an athlete’s birth certificate. This year, it famously barred a transgender boy from wrestling other boys; he went on to win the girls state title.

[…]

Legal experts agreed that while the legislation won’t create a state-funded “potty police,” it will likely land Texas in the courtroom if it becomes law.

Dale Carpenter, a constitutional law professor at Southern Methodist University’s Dedman School of Law, questioned the legality of Kolkhorst’s bills as well as two pieces of legislation pending debate in the House.

The House bills, pushed by Carrollton Republican Ron Simmons, are far narrower and seek to shift the power over regulating bathroom from municipalities and schools to the state government.

But TASB’s Baskin says Simmons’ schools bill won’t require them to change their current policies because it would not force trans kids out of the multi-stall restrooms that match their gender identity. Simmons disagrees, but understands most schools are already only providing single-stall bathrooms for trans kids.

House Speaker Joe Straus, R-San Antonio, has called the bathroom debate unnecessary and the legislation anti-business, but one of Simmons’ two bathroom bills already has more than 40 Republican co-sponsors in that chamber.

Carpenter said the Senate bills would be more susceptible to a legal challenge because they restrict rights based on biological sex and gender identity. The House bills don’t explicitly use these terms or limit bathroom use based on “birth certificate,” so they’d be tougher to fight in court, he said.

“The (Senate) bill, it seems to me, is directly aimed at preventing people from using restrooms associated with their gender identity,” Carpenter said. “But, no matter which of these laws passes, it will probably be challenged.”

Obviously, it would be best if it didn’t come to that, but best to be prepared for the worst. My assumption has been that there will be more than one lawsuit, as there will be multiple angles to attack this from. The fact themselves that the bills being considered seem to have a lot of loopholes and room for broad interpretation is also an invitation to litigate. Like so many other things the Lege and our Republican leaders have deemed to be top priorities, this will be tied up in the courts for years.

But first, there’s the hard work to try to stop these bills from becoming law, and a big part of that is the public testimony against them. One takeaway from the fight over HB2, the omnibus anti-abortion legislation that Wendy Davis filibustered and the Supreme Court eventually invalidated, was how much the public testimony contributed to the court case, by showing how indifferent and willfully ignorant the Republicans were to objective fact and contradictory evidence. I feel pretty confident the same sort of thing will happen here with the potty bills, if they make it to the finish line. There’s live coverage of the hearings in the Trib, and there’s plenty of activity going on outside and around the Capitol, as the Texas Association of Business runs anti-bathroom bill ads and the national Episcopal Church comes out against the bills. It’s never a bad idea to call your legislator and let them know how you feel, so make your voice heard. And remember, in the end, the one message every politician receives is losing an election. The Observer, BurkaBlog, the Current, the Rivard Report, and Texas Leftist have more.

UPDATE: In the end, SB3 passed out of committee, as expected. On to the floor of the Senate, then it’s up to the House.

Wisconsin case undermines even the scaled back bathroom bill

Special session or not, this could be a big deal.

The U.S. Court of Appeals for the Seventh Circuit likely just handed the Supreme Court a new case about a transgender student to consider. The Court’s opinion, issued Tuesday, eviscerates a Wisconsin school’s arguments for discriminating against one of its students.

Ashton Whitaker (“Ash”), now a 17-year-old senior, first filed suit against Kenosha Unified School District a little over a year ago, arguing that the school was illegally discriminating against him by prohibiting him from accessing the boys’ restrooms. He had previously used the restroom for six months without incident before the new policy was implemented. Ash was instead forced to using single-stall restrooms that were very far away from his classes and that further stigmatized him among his classmates. His bathroom usage was then policed, with the school even considering requiring him to wear bright green wristbands or stickers to easily identify him, though it never actually took that step.

Back in September, U.S. District Judge Pamela Pepper granted Ash a preliminary injunction against the policy, ensuring he could use the facilities that match his gender identity throughout his senior year. The school appealed, but Tuesday’s ruling upholds the injunction, allowing Ash to finish out the school year without being segregated because he is transgender.

The decision is very unforgiving of the school’s arguments against Ash’s integration, to say the least.

For example, the district claimed that Ash’s harm was “self-inflicted” because he didn’t take advantage of the accommodations that were provided. The decision noted that this argument fails for a number of reasons. First, segregating him to a separate bathroom caused anxiety related to his transition, as well as the fact that it invited scrutiny from his peers. This anxiety prompted Ash to avoid drinking water to avoid using the restrooms, which exacerbated physical symptoms he experiences due to his vasovagal syncope, a condition that causes him to experience fainting and/or seizures when dehydrated.

This was all in addition to the fact that the bathrooms were on the opposite side of the building from his classes. “Therefore,” the Court wrote, “he was faced with the unenviable choice between using a bathroom that would further stigmatize him and cause him to miss class time, or avoid use of the bathroom altogether at the expense of his health.”

The district had in turn argued that allowing Ash to use the boys’ bathrooms would somehow infringe on “the privacy rights of all 22,160 students” in the district. The Court dismissed this argument as being “based upon sheer conjecture and abstraction.”

Ash had used the boys’ bathroom for six months without incident. It was only after a teacher — not a student — noticed him using the bathroom that the policy was implemented. The district also claimed to have received just one complaint, and it was from a parent — again, not a student. The Court further countered that this reasoning “ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.”

The parallel to Texas isn’t exact because it was school district policy in Wisconsin that was at issue, not state law, but as Vox explains, it’s the remedy that really matters.

If existing federal law and the 14th Amendment shield trans people from discrimination, then it’s not just Whitaker’s rights that are protected here, but all trans students’. And if bans against sex discrimination in particular apply to trans people, then it’s not just students’ rights that are protected, but all trans people who face discrimination in other settings where sex discrimination is banned — so not just schools, but the workplace and housing as well.

[…]

The Seventh Circuit Court’s case does not have the limitation of being attached to the guidance or any other regulation that the Trump administration could rescind. Instead, it poses the straight question: Are trans people protected under federal law? If other courts agree with the Seventh Circuit Court, that could reshape the face of civil rights laws in America — and help fill a void that’s left trans people legally unprotected from discrimination across most of the US.

Under most states’ laws and federal law, trans people aren’t explicitly protected from discrimination in the workplace, housing, public accommodations, and schools. This means that a person can be fired from a job, evicted from a home, kicked out of a business, or denied the correct bathroom facility just because an employer, landlord, business owner, or school principal doesn’t approve of the person’s gender identity.

LGBTQ advocates argue, however, that federal civil rights law should already shield trans people from discrimination.

The argument: Discrimination against someone based on their gender identity is fundamentally rooted in sex-based expectations. For example, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — a belief built on an idea of what a person of a certain sex assigned at birth should be like. So since federal civil rights laws, such as Title IX, ban sex discrimination in the workplace, housing, and schools, they should ban discrimination against trans people in these settings as well.

This isn’t just a wild interpretation by LGBTQ advocates; there’s legal precedent for it. Joshua Block, an American Civil Liberties Union attorney who worked on Grimm’s case, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.

Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “That’s not how laws work. This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”

Seventh Circuit Judge Ann Claire Williams embraced this view in her ruling on Tuesday: “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.”

But the court went even further — arguing that the Kenosha Unified School District’s actions violated the 14th Amendment. The school district claimed that it treats all boys and girls equally — meaning it forces them all to use certain bathrooms based on the sex they were assigned at birth instead of their gender identity. But Williams ruled that this is “untrue,” adding, “Rather, the School District treats transgender students like Ash, who fail to conform to the sex‐based stereotypes associated with their assigned sex at birth, differently.”

You can see how that would apply to Texas, or any other state that doesn’t already have a non-discrimination law that includes transgender people. It’s just theoretical at this point because Texas isn’t in the Seventh Circuit, but the case is a road map for any litigation that would result from the passage of even the watered-down bathroom bill that could have passed in the regular session. That won’t stop Dan Patrick, of course, and Lord only knows what the Fifth Circuit might do once such a case crossed their threshold, but the point here is that a precedent now exists, and anything the bad guys do from here will have to take that into account. RG Ratcliffe and Buzzfeed have more.

Two more lawsuit updates

The ban on the transgender bathroom rule remains in place pending appeals.

RedEquality

Continued lack of access in public schools to bathrooms matching transgender persons’ gender identity won’t cause them irreparable harm, a Texas federal judge has ruled.

U.S. District Reed O’Connor of Wichita Falls, Texas, made that finding Sunday in ruling against two federal executive branch departments.

O’Connor concluded the U.S. Department of Justice and the Department of Education had failed to show they will suffer irreparable injury if he allows to continue his nationwide ban on their policy for allowing transgender people in public schools access to the bathrooms assigned to the gender with which they self-identify.

The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which the federal government agencies claim now includes gender identity—were promulgated nearly 40 years ago, O’Connor wrote.

He referred specifically to the time gap between the passage of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 and May this year when the federal agencies announced their new transgender bathroom guidelines for public schools. “[T]he Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the [federal agencies’] guidelines delayed until their legality is established,” O’Connor wrote.

See here for the background. I’m sure no one suffered any injury at all during the time between the passage of Title IX and the much more recent recognition of transgender people as actual human beings.

The litigation over the Obama Administration executive order on immigration will be on hold until next year.

The first major litigation effect of the election of Donald Trump took place in a Texas federal district court Friday when the lawyers in the case against the Obama administration’s plan to delay deportation of millions of undocumented immigrants asked the judge to postpone proceedings until Feb. 20.

“Given the change in administration, the parties jointly submit that a brief stay of any further litigation … would serve judicial efficiency and economy so that the parties have a better understanding of how they might choose to move forward,” U.S. Justice Department lawyers wrote in the filing.

[…]

The injunction will remain in place if the judge grants the motion to stay the proceedings. President-elect Trump would have the option of ending the litigation after his inauguration by withdrawing the guidance that authorized the deportation delays.

SCOTUS had declined to intervene in the appeal of the original ruling that halted this order nationwide, so here we are. Both of these cases involve non-legislative action – an executive order in this case, and an updated administrative guideline from the Department of Education in the other – and so in some sense the litigation doesn’t matter, since both of those actions can and almost certainly will be reversed by the next President. I would imagine that once that happens, the Attorneys General who filed these suits will withdraw them. Such will be life for the next four years.

The MOB and Baylor

So you’ve probably heard about this by now.

If it’s possible for a band to steal headlines away from a football game, Rice’s Marching Owl Band found a way.

While Rice made strides but ultimately fell against No. 21 Baylor 38-10 on Friday at Rice Stadium, it was what happened at halftime that was the focus.

The MOB dedicated its halftime routine to satirizing Baylor’s sexual assault scandal. It sparked controversy throughout social media and the college football world.

Some believe the band was rightfully shining light on Baylor’s handling of the assaults. Some believe the band went too far in satirizing a serious matter.

It appears Rice officials agree with the latter. The university released a statement Saturday apologizing for the MOB’s performance.

The statement reads:

“The Marching Owl Band, or MOB, has a tradition of satirizing the Rice Owls’ football opponents. In this case, the band’s calling attention to the situation at Baylor was subject to many different interpretations. Although the band’s halftime shows are entirely the members’ projects with no prior review by the university administration, we regret any offense, particularly if Baylor fans may have felt unwelcome in our stadium. While we know that the MOB did not intend in any way to make light of the serious issue of sexual assault, we are concerned that some people may have interpreted the halftime performance in that vein. Sexual assault is a matter of serious concern on campuses across the nation, and all of us have an obligation to address the matter with all the tools at our disposal. The MOB sought to highlight the events at Baylor by satirizing the actions or inactions of the Baylor administration, but it is apparent from the comments of many spectators and Baylor fans that the MOB’s effort may have went too far.”

In the performance, the band started with Muppet Fozzie Bear on the video board and the narrator saying “some jokes can be unbearable”, a miniscule jab at Baylor’s mascot.

The announcer then said “There are nine judges on the Supreme Court or is it?” The band proceeded to align in a formation to resemble the Roman numeral nine representing Title IX – poking fun at the multiple Title IX lawsuits Baylor is facing over the school’s handling of sexual assaults.
It took another turn when the band aligned in a star formation meant to represent former Baylor president Ken Starr and his resignation, all the while playing the song “Hit The Road, Jack.”

You can see the full script for the show here; the embedded image contains the bit that this story elides over. As you may know, I play with the MOB and I was there on the field for this show on Friday night. All I’m going to say is that Rice University may feel the need to apologize for something, but I don’t. They are not speaking for me on this. Nor, apparently, are they speaking for the editor of the Rice Thresher, who is for more eloquent than I. The Trib and Deadspin have more.

UPDATE: More from the Press and Underdog Dynasty.

UPDATE: Even better commentary in this Observer piece, written by a former MOB member.

You are still free to discriminate against LGBT people

Just a reminder.

RedEquality

Campus Pride usually highlights the best colleges for LGBT youth, as expensive as they may be. But for the first time today, the advocacy group is calling out the worst campuses for queer students.

“Most people are shocked when they learn that there are college campuses still today that openly discriminate against LGBTQ youth,” said Campus Pride executive director Shane Windmeyer in a statement accompanying the Shame List released today. “It is an unspoken secret in higher education, how [schools] use religion as a tool for cowardice and discrimination.”

That secret has been spoken about more openly in the past several months, as the U.S. Department of Education announced in January that it was creating a searchable database listing every U.S. college and university that requested a waiver from the LGBT-inclusive nondiscrimination protections outlined in Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex (including gender identity) in schools that recieve federal funds.

In order to qualify for a religious exemption to Title IX through the Department of Education, an institution must prove that following the law conflicts with specific tenets of that school’s stated religious affiliation, and it must be operated by a religious institution, among other requirements. Schools must outline the specific policies that would be affected by Title IX requirements and explain how the institution’s religious doctrine conflicts with the legal requirement not to discriminate based on sex or gender identity.

The Shame List features 102 schools from across the country, including postsecondary schools with historically anti-LGBT policies, along with those that requested officials exemptions from Title IX. Any school that met either or both of these requirements was placed on the list, which Campus Pride calls a roll of “the absolute worst.”

Campus Pride spent six months combing over the the  Department of Education’s database on schools that have requested and received faith-based Title IX waivers, cross-referencing that list with additional research on schools that have policies viewed as hostile to LGBT students.

“Our job as Campus Pride is to make sure that every person in the country knows that these campuses decided that they are going to openly discriminate against LGBT young people,” Windmeyer told The Advocate via phone. “This list uncovers the religion-based bigotry that is harmful and perpetuated against LGBTQ youth on these campuses.”

Texas, California, Missouri, Florida, Oklahoma, and Kentucky all have more than four colleges on the Shame List, Windmeyer said, adding that the South has the highest density of schools on Campus Pride’s list. The 102 schools on the list account for roughly 2 percent of the 5,000 colleges and universities in the U.S., according to the Department of Education.

The Human Rights Campaign previously shed some light on the growing number of schools requesting religious exemptions in 2015 with its “Hidden Discrimination” report. In that year, 55 colleges either applied for or were granted the exemption, effectively arguing that their faith doctrine required them to allow discrimination in admissions, housing, athletics, facilities, and rules of behavior based on gender identity or sexual orientation.

“Ultimately these campuses are dangerous for vulnerable LGBTQ youth and others,” said Windmeyer. “All families and youth deserve to know this information — and so do corporations who do business with these campuses — from those who hire and recruit, vendors who contract food service, sell books, make donations and in any other way provides goods or services to a college or university.”

Nine of those 102 schools are here in Texas. Despite the bluster from certain circles, existing law shields these religious institutions from having to deviate from their belief that some classes of people are inferior to others. That’s not going to change, though I certainly hope that some day the institutions themselves will decide on their own to change. Just keep this in mind when the Legislature is in session next spring and the bluster about “religious liberty” being “under assault” is in full flower. The DMN has more.

No ruling yet in potty lawsuit

We should get one soon, at least as far as the request for an injunction goes.

RedEquality

U.S. District Court Judge Reed O’Connor did not issue a ruling from the bench after an almost two-hour long hearing during which state attorneys — as part of a Texas-led, 13-state effort to block the guidelines — argued they unconstitutionally “hold a gun to the head” of states and school districts.

In the first hearing over the state’s lawsuit against the federal government, Austin Nimocks, associate deputy for special litigation in the Texas Attorney General’s office, told O’Connor that the federal government “usurped” the authority of states and schools by requiring that “sexes must be mixed” in “intimate areas” like bathrooms.

[…]

But Texas jumped the gun in filing the lawsuit because the federal government has not moved forward with any enforcement action against a school, said Benjamin Berwick, an attorney with the U.S. Department of Justice. Because of that, Berwick argued, Texas and the dozen other states that joined the lawsuit have no legal standing.

“Even if the guidance documents didn’t exist, the [federal government] could still bring enforcement based on understanding of the law as it pertains to transgender individuals,” Berwick argued. The difference is that entities would not have the “benefits” of knowing how the feds are interpreting the nondiscrimination protections.

During the hearing, Nimocks regularly described the guidelines as coercive because schools were required to change their policies or risk losing federal funds over unconstitutional rules that were “legislative in nature” but passed without congressional approval.

“They cannot simply say they are clarifying” existing law, Nimocks said, adding that the new rules were not consistent with the use of the sex category by Congress in the federal statutes, where it has been kept separate from gender identity.

See here and here for some background, and here for a story from before the hearing. As my children know all too well, school starts in nine days, so expect a ruling this week. Judge O’Connor is being asked to impose a nationwide halt on the directive, which is kind of a big deal especially with more than half of the states not being involved in the litigation. I suppose a more limited injunction is a possibility, but we’ll see.

UT will not push UIL on transgender athletes

Unfortunate.

Despite objections from LGBT advocates, UIL’s longstanding informal policy is set to become official August 1 — when it takes effect as an amendment to the league’s constitution.

The amendment, initially approved by UIL’s Legislative Council last year, wasoverwhelmingly ratified by representatives from member districts in February.

However, LGBT advocates hoped officials at the University of Texas at Austin, which oversees UIL, would veto the amendment since it appears to conflict with the school’s policy against discrimination based on gender identity.

UT-Austin officials confirmed they were reviewing the proposed UIL amendment in April, but university spokesman J.B. Bird indicated this month they have no plans to halt its implementation because underlying legal questions about accommodations for trans students remain unsettled.

Bird noted that Texas Attorney General Ken Paxton recently filed suit against the Obama administration over federal guidance saying public schools must allow trans students to use restrooms and other facilities “consistent with their gender identity.”

“I think that’s definitely causing the university to look very carefully at what’s happening around us … since we’re a state agency, and we have the state pursuing these actions ” Bird said.

Paul Castillo, a Dallas-based staff attorney for the LGBT civil rights group Lambda Legal, said that by allowing the UIL amendment to take effect, the university is violating Title IX of the U.S. Education Amendments, which prohibits discrimination based on sex in federally funded education programs.

The U.S. Department of Education has repeatedly said Title IX protects trans students.

“They are violating Title IX by sitting on their hands and waiting for litigation to play itself out,” Castillo said of UT. “They’re putting their own funds at risk, but beyond that, as a university system, they should take a stand.”

See here, here, here, and here for the background. All that is needed here is for UT, and by extension the UIL, the follow the guidelines of the NCAA and International Olympic Committee, and thus not violate Title IX. Clearly, we are going to have to do this the hard way.

UIL punts again on transgender athletes

I say again, please reconsider this.

The debate over the University Interscholastic League’s policy for transgender athletes continues after the organization’s legislative council took no action during Tuesday’s meeting in Round Rock.

The UIL rule stating a student’s gender is identified by his or her birth certificate is scheduled to go into effect Aug. 1 after district superintendents and athletic directors voted 409-25 in favor in February, but LGBT advocates believe the rule violates Title IX and the UIL Constitution.

The UIL is part of the University of Texas at Austin and abides by its constitution, which prohibits gender identity discrimination.

LGBT advocates are lobbying to allow students to participate in sports under whichever gender they identify with and delay implementation of the new policy. The UIL opted to table the debate for a later date considering pending litigation.

See here, here, and here for the background. Given the current climate of potty hysteria, I don’t expect the UIL to reconsider. I almost can’t blame them, however un-courageous they’re being. This one will be resolved in the courts, sometime after the policy becomes official in August. It’s just where we are these days.

Baylor fires Art Briles

About time.

Baylor University, in response to allegations of sexual assaults made against students — including by several football players — announced Thursday that football coach Art Briles has been suspended with intent to terminate, and Kenneth Starr will no longer serve as the president but will stay at the school.

Baylor’s actions come after the university’s board of regents received an independent report from a law firm that investigated the school’s response to sexual assault allegations.

“We were horrified by the extent of these acts of sexual violence on our campus. This investigation revealed the University’s mishandling of reports in what should have been a supportive, responsive and caring environment for students,” Richard Willis, chairman of the Baylor board of regents, said in a statement.

“The depth to which these acts occurred shocked and outraged us. Our students and their families deserve more, and we have committed our full attention to improving our processes, establishing accountability and ensuring appropriate actions are taken to support former, current and future students.”

Starr will transition into a role as chancellor and remain as a law school professor. Starr’s duties as chancellor will include external fundraising and religious liberty; he will have no operational duties at the university.

Athletic director Ian McCaw was sanctioned and placed on probation. He is working to find an interim football coach, according to Richard Willis, who is a member of Baylor’s Board of Regents.

Dr. David Garland, a former dean and professor at Baylor’s George W. Truett Theological Seminary, will serve as interim president. The school said in the release that additional members of the administration and athletics program have also been dismissed but declined to identify them.

Baylor officials said in a news release that the school had hired a New York law firm to contact the NCAA about potential rules violations.

A copy of the report is here, and Baylor’s press release announcing their actions is here. I have no sympathy for Art Briles, and I hope he never coaches again anywhere. Let him spend the rest of his life regretting his actions, or lack of same. And as you read the zillions of stories on the Internet about this, please spare a thought for the victims of those uninvestigated assaults, and give the stories that spend any time contemplating what this means to the Bears’ football fortunes the contempt they deserve. If you need a little extra focus for that, or just a reminder of how we got here, go read this Texas Monthly story from last August, and this Outside the Lines report from last week. Think Progress, Texas Monthly, Martin Longman, and Deadspin’s Diana Moscovitz, who is not impressed, have more.

Federal appeals court sides with transgender teen in bathroom case

This could be big.

A federal appeals court in Richmond has sided with a transgender high school student, saying that he can proceed with his lawsuit arguing that his school board’s decision to ban him from the boys’ bathroom is discriminatory.

In backing high school junior Gavin Grimm, the U.S. Court of Appeals for the 4th Circuit deferred to the U.S. Education Department’s interpretation of policies that give transgender students access to the bathrooms that match their gender identities rather than their biological sex. The federal department has said that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, which prohibits gender discrimination at schools that receive federal funding.

“It’s a complete vindication for the education department’s interpretation of Title IX,” said Joshua Block, an attorney with the American Civil Liberties Union who represents Grimm.

In a 2-to-1 decision, the 4th Circuit reversed a lower court ruling, saying that court had used the wrong legal standard in denying the student a preliminary injunction that would have allowed him to use the boys’ bathroom at his high school in Gloucester County, Va. Judge Henry Floyd, who wrote the majority opinion, also ruled that the boy’s discrimination lawsuit could move forward. The appeals court remanded the case to the lower court to be reheard.

The 4th Circuit is the highest court to weigh in on the question of whether bathroom restrictions constitute sex discrimination, and the decision could have widespread implications on how the courts interpret the issue as civil rights activists and local politicians battle over school bathrooms.

“The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity,” the court wrote.

[…]

The decision’s legal implications are far broader than just Grimm’s case, as it could shape other court battles, including one in North Carolina, where a transgender university student and employee already have sued to overturn the new law there. Other judges outside the 4th Circuit, which includes North Carolina, could look to the court’s ruling in future legal fights because it is the highest court so far to weigh in on the legality of bathroom restrictions for transgender students.

The Obama administration has taken the position that such restrictions for students are a violation of Title IX, and officials in Washington have warned school districts that they risk losing federal funding if they fail to accommodate transgender students. Following a civil rights complaint, the U.S. Education Department found that an Illinois school district violated Title IX when it barred a transgender girl from a girls’ locker room.

But lower-court rulings have gone against the Obama administration’s position, including in Grimm’s case, when a district judge ruled that Title IX protects students from discrimination based on biological sex, not gender identity.

There are a lot of caveats to this story, beginning with this:

Judge Floyd’s opinion does contain some language that could create trouble for trans equality in the future, especially if a new president who opposes LGBT rights is elected. Though the Obama administration reads the regulation at issue in this case in a way that promotes trans rights, the regulation itself, Floyd writes, “is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.” Thus, his opinion concludes that “the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.”

For the time being, this conclusion that the regulation is ambiguous is good news for trans individuals seeking access to the appropriate restroom, because Supreme Court precedents also call on federal courts to defer to agencies in cases such as this one. As Floyd writes, the Supreme Court’s decision in Auer v. Robbins “requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.” Nevertheless, a new administration could rewrite the underlying regulation, if it chose to, and Floyd’s opinion does little to prevent such a rewrite from relegating trans students to a bathroom that does not correspond with their gender identity.

So long as Barack Obama — or a similarly-minded president — sits in the White House, however, Judge Floyd’s reasoning will protect trans students who are impacted by discriminatory policies governing which bathroom they may use. Floyd’s opinion was joined by Judge Andre Davis, also an Obama appointee. Judge Paul Niemeyer, a Bush I appointee, dissented from the relevant parts of Floyd’s opinion.

It’s one appellate court, and this ruling – which sent the original lawsuit back to district court – only affects states in the Fourth Circuit. Other appeals courts may rule differently, and of course this will eventually end up before SCOTUS, where who knows what will happen. So the future and the timeline are both uncertain, but the direction is right. If it acts as a deterrent to even one city or state that contemplates a similar bathroom ordinance or law, so much the better. Daily Kos has more.

Students against Dave Wilson

OUT SA, the website for out students and allies at Houston Community College, reviews a litany of Dave Wilson’s recent activities and discusses what can be done about them.

Dave Wilson

Dave Wilson

Mr. Wilson has created a hostile environment for LGBT students, staff, and faculty of Houston Community College by these actions. In addition, with his last action, he puts HCC at risk of violating Title IX protections. The US Dept. of Education has stated that Title IX specifically protects transgender identities, and the ability of those with these identities to use facilities at federally funded educational organizations, a category which HCC falls into. If the Trustee is successful in his petition, most transgender students will not be able to use the correct bathrooms and locker rooms for their gender identity. As such, HCC will be in violation of Title IX. This puts HCC at risk of litigation and/or the removal of federal funds.

You may be wondering what you can do to help prevent this blow to both LGBT rights and to Houston Community College. There are two options, and depending on your residence, or your status as student, staff, or faculty at HCC, you may be able to participate in one or both.

For students, staff, and faculty, you may file a complaint with the HCC Office of Institutional Equity. To do so, fill out this contact form, and a representative of that office will be able to contact you. If you are a student, your department and job title will be student, and the college will be the one which you attend most frequently (Central, Coleman, Northeast, Northwest, Southeast, or Southwest).

If you are a resident within the HCC District, you may fill out this petition. If you’re unsure of whether you reside within the District, please visit this map, if you live within one of the numbered districts, you live within the HCC district.

And remember, if you meet both qualifications, you can fill out both the complaint form AND the petition.

We are also planning on attending the September Board of Trustees meeting. If you would like to speak to the Board, or you just want to attend, please contact us, and we will let you know how you may participate.

Emphasis mine. I’ve previously suggested that Wilson’s proposal is illegal on its face, but I hadn’t considered the Title IX angle. That’s a lot of your taxpayer dollars that Dave Wilson would like to put at risk, both in terms of funds for HCC and defending against the litigation I’ve suggested would follow. Maybe this isn’t something that an elected official with fiduciary responsibilities should be doing. Maybe the fact that Wilson is (God help us) an elected official with fiduciary responsibilities is something that we ought to take into consideration when we discuss this vendetta he has.

(Food for thought: Suppose Wilson manages to get his proposal on the ballot, and it passes. When the inevitable Title IX lawsuit is then filed against HCC, what is to stop the other HCC trustees from declining to dedicate funds to pay for the defense of said lawsuit, and instead instructing their lawyers to seek an immediate settlement? That would be the fiscally responsible thing to do – never mind the morally responsible thing to do – after all.)

That petition referenced in the post, which calls on Wilson to “cease working to violate the civil rights of the students he is supposed to be representing”, or failing that for the rest of the Board “to begin removal procedures against him”, deserves some love. Put your name on it and help spread the word. The more people know about and stand against Dave Wilson, the better.

The homecoming queen’s got a strong right leg

I love this story.

[Mary Morlan] Isom, who is also LSU’s reigning homecoming queen, has been trying out this week for a spot on LSU’s football team as a placekicker. If she makes it, she would be the first woman football player in school history.

However, Isom said she knows not everyone is keen on the idea of women playing a historically male sport.

“There are definitely people with varied opinions about it,” she said. “Whether those individuals like it or not, I’m still chugging along and pursuing this goal.”

As for family and friends, including the football team, they’re behind her 100 percent.

Isom said Wednesday that the football players, many of whom she already knew because the soccer and football teams use the same facilities, were supportive of her ever since she approached the team with the idea in January 2011.

Isom even joked that she’s “just one of the guys.”

“Those upperclassmen have been by my side for three, four years now,” she said.

Isom was the goalie for LSU’s women’s soccer team for four years. Having graduated and enrolled in grad school, NCAA rules allow her a year of eligibility in another sport. The challenge for her here is especially great because LSU’s returning placekicker was 16 for 18 on field goals last year, so they don’t exactly have a screaming need there. Nonetheless, I wish her the best of luck in her quest, and hope that others follow in her footsteps.

The five female ADs of local school districts

Nice story, with a bit of a lesson in it.

The Houston, Katy, Klein, New Caney and Spring Branch districts all for the first time employ women as athletic directors, reflecting a new model, if not necessarily a new path, to the top in interscholastic administration.

Like their male counterparts and predecessors, Debbie Decker (Katy), Teresa Anderson (Klein), Paige Hershey (Spring Branch) and Marmion Dambrino (Houston) all advanced through the ranks after years as coaches or administrators. Pamela Lea (New Caney) is in her first AD’s job after years as an assistant AD in Fort Worth.

“All the old guys are retiring,” said Rusty Dowling, Decker’s predecessor at Katy, “and districts are moving away from the model where the football coach who had the most success and was first to retire became AD if the job was open. That still happens, but some districts are taking a different look at the position.

“There are so many challenges for ADs, whether it’s finances or staffing or budgets, that having a successful record on the football field is no longer a prerequisite. A coaching background helps, but a lot of districts are looking for an administrator with a business component.”

[…]

Each of the five female ADs – plus Krista Malmstrom, who shares the title in Humble with Troy Kite – took a different path to the job. All, however, had male mentors who saw leadership qualities in them, and all benefited from the increased importance placed on girls sports since the advent 40 years ago of Title IX, the federal statute requiring equal opportunities in federally funded institutions.

I noted Dambrino’s hiring here. I like the fact that all these women were mentored along the way. Diversity and equal opportunity isn’t just about broadening your talent pool, it’s also about identifying and investing in the talent you have. However you look at it, it’s good news about some trailblazing women. May many more follow in their footsteps.