Hawaii State Capitol – Photo: Gillfoto, via Wikimedia.
Earlier this month, Hawaii Gov. David Ige (D) signed a law that provides additional protections under Title IX for LGBTQ students.
The bill, which received very little attention, provides for a state corollary to Title IX that prohibits discrimination on the basis of “sex” — including gender identity or expression, or sexual orientation — in any state educational program or activity, or in any program, including after-school or extracurricular activities, that receives financial assistance from the state.
The bill also directs the state’s legislative reference bureau to conduct a study of Title IX policies across the nation and, if needed, propose legislation to help strengthen Title IX’s overall promise of equal educational opportunities for women.
Although the original Title IX statute does not explicitly protect students from discrimination based on their sexual orientation or gender identity, several courts have interpreted Title IX’s ban on “sex-based discrimination” to apply to instances where LGBTQ students have been discriminated against or denied access to certain programs or facilities.
In passing the bill, which goes into effect in 2020, Hawaii solidifies those protections for LGBTQ students in future years, thereby ensuring they will continue to be protected even if the federal government and courts decide that the term “sex” in Title IX should be narrowly interpreted as applying only to one’s assigned sex at birth.
Under past guidance from the Obama administration, schools were encouraged to treat transgender youth in accordance with their gender identity, on the premise that Title IX protects LGBTQ youth from discrimination. That guidance was rescinded by the Department of Education and the Department of Justice shortly after President Trump was sworn into office.
Earlier this year, Education Secretary Betsy DeVos announced that the Department’s Office of Civil Rights would no longer investigate claims of discrimination filed by transgender students who have been banned from certain locker room or restroom facilities due to their assigned sex at birth. However, the office did leave open the possibility of investigating other forms of discrimination against transgender students, so long as they did not deal with access to single-sex facilities.
At the time, a department spokeswoman clarified that the Trump administration does not believe Title IX’s protections extend to LGBTQ students. DeVos later announced that the Education Department would not take any further action to change its transgender-related policies until either Congress or the Supreme Court took action to “clarify” the meaning of “sex-based discrimination” in Title IX.
Hawaii’s Title IX bill was watered down to eliminate a provision that would have allowed the state’s Civil Rights Commission to adjudicate student complaints of discrimination and issue right-to-sue letters on behalf of students who wish to sue their schools. Nonetheless, it was hailed by pro-LGBTQ advocates as a “huge step” for both women and LGBTQ students.
“People haven’t really realized what we’ve done, but this is going to go very far in terms of protecting our kids,” State Sen. Jill Tokuda (D-Kaneohe) told Hawaii’s Civil Beat newspaper.
“No student should ever be treated differently simply for being who they are,” Sarah Munshi, state and district policy manager for GLSEN, said in a statement. “Unfortunately, discrimination on the basis of sexual orientation, gender identity, and gender expression is commonplace in schools all across the United States.”
LGBTQ Hawaiians have scored several victories in the past few months in addition to the Title IX bill. In April, Gov. Ige signed a bill prohibiting licensed counselors from subjecting LGBTQ-identifying youth to conversion therapy. Earlier this month, the Hawaii Supreme Court upheld a lower court ruling finding that a Catholic owner of a bed and breakfast had violated the state’s civil rights law when she turned away a lesbian couple, citing her religious beliefs and asking for an exemption from the statute.