The New Title IX: A More Adversarial Process?
At SUNY Spectrum's "Nine on IX" panel, nine legal experts discussed the most pressing potential changes that educational institutions may need to grapple with if the new regulations contained in the Department of Education's 2018 Notice of Proposed Rulemaking on Title IX go into effect. Among the most significant proposed changes are new requirements that could fundamentally affect the ways in which most institutions conduct their investigations, adjudications, and appeals. Importantly, under the proposed regulations the "single investigator" or "investigator-only" model is out—Title IX grievance procedures will require enhanced due process for respondents and complainants alike. The most significant hurdle that institutions will likely face under these proposed rules is restructuring their hearing processes to comply with the requirement that the parties must be allowed to conduct cross-examinations against testifying witnesses, but without causing the hearings to become detrimentally adversarial. Although they do not allow confrontation between the complainant and respondent, the proposed regulations do allow the cross-examination of witnesses "by the party's advisor of choice." The proposed regulations permit a party's advisor to be any individual, including a private attorney. In practicality, an institution's Title IX hearing could become a "trial" of sorts, in which one or more attorneys could ostensibly conduct cross-examinations of the complainant and respondent and any of their witnesses, including other students, staff, or faculty. There are onerous ramifications for institutions if such due process-oriented rules are passed, and most if not all educational institutions will need to substantially revise their grievance procedures.
Respecting and Protecting Trans Student Privacy
Student identification numbers, demographic data, names, email addresses—educational administrators deal with this kind of identifying or directory information on a daily basis. Indeed, the Family Educational Rights and Privacy Act (FERPA) is always in the back of an administrator's mind. However, an educational institution may need to think about how to expand its collective thought processes when it comes to protecting the privacy of students who are transgender or identify as gender nonconforming. Working with students to effectuate name or gender designation changes in the school's enterprise system and adhering to a student's pronoun preferences are measures within a school's control that can protect the privacy and enhance the comfortability of trans or nonconforming students in the campus community. Although some campus records do not receive FERPA protection, such as documents FERPA defines as "treatment records" made by physicians or psychological professionals, special care should still be taken to protect the information contained in such records, regardless of whether it is mandated by federal law. Such measures can help ensure the safety, security, and inclusiveness of the campus community for transgender students.
It's Up to SCOTUS; Expanding Title VII Protections to the LGBTQI+ Community
The Supreme Court of the United States (SCOTUS) could make a landmark decision this session that would have wide-reaching consequences for the LGBTQI+ community. Currently under review are three consolidated cases (Baldwin v. Foxx; Zarda v. Altitude Express, Inc.; Stephens v. R.G. & G.R. Harris Funeral Homes, Inc.) that could fundamentally change the employment discrimination landscape. The issue before the Court is whether federal law (Title VII) prohibits an employer's discrimination against employees based upon their sexual orientation, including an individual's transgender or transitioning status. For many states that do not already have state laws guaranteeing employment protections based on sexual orientation or gender identity, the Court's ruling here could substantially alter the way in which employers currently operate under the law. Considering the Court's composition, it is difficult to speculate how the Court will rule on this issue. While many Court watchers remain skeptical that the Court will actually expand Title VII protections here, many advocates remain hopeful that SCOTUS will adopt the lower courts' reasoning and ultimately determine that Title VII's protected classification of "sex" also encompasses and protects individuals based on their sexual orientation and gender identity. Like many cases before the Court these days, the tie-breaking justice to watch here will likely be Justice Roberts.
Even More PRIDE in New York: 2019 Legislative Updates for LGBTQI+ Rights
This has been an especially busy legislative year in New York. Just in time for WorldPride NYC and the 50th Anniversary of the Stonewall Uprising, several new bills have been passed or enacted in 2019 that provide increased protections for New York's LGBTQI+ community. Some of the legislative highlights include the following: First, "gender identity or expression" was added as a protected classification to the New York Human Rights Law under the Gender Expression Non-Discrimination Act (GENDA). The law also escalates crimes against transgender New Yorkers to hate crimes. Second, a bill was passed in 2019 (but not yet signed by the governor) that would prohibit public educational institutions from discriminating against or permitting the harassment of students or applicants based on their protected classification(s) under the New York Human Rights Law. Third, new 2019 legislation now bans "conversion therapy" in New York for individuals younger than 18 years. This prohibition covers "any practice that seeks to change an individual's sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex," but does not include "gender transition counseling" or "psychotherapies that do not seek to change sexual orientation." Fourth, New York's Sexual Assault Victims Bill of Rights went into effect in 2019, which requires the Department of Health to publish a document "informing sexual offense victims of their rights under state law." Once finalized, this document will be posted to the Department of Health's website and will be distributed by hospitals in New York State. School health centers and counseling services centers should be aware of this resource for their constituents. Finally, New York has added a new crime to its penal code that prohibits unlawful dissemination or publication of "an intimate image." Similar laws are more colloquially referred to as "revenge porn" laws. Now, intentionally disseminating a private, intimate image without consent in New York is a Class A misdemeanor. In the age of the Internet and social media, educational institutions increasingly have to grapple with how to handle such issues and address them in their codes of conduct or student disciplinary procedures.