[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
ON THE BASIS OF SEX:
EXAMINING THE ADMINISTRATION'S
ATTACKS ON GENDER-BASED PROTECTIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 10, 2020
__________
Serial No. 116-62
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the: https://edlabor.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-429 PDF WASHINGTON : 2022
-----------------------------------------------------------------------------------
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Lloyd Smucker, Pennsylvania
Donald Norcross, New Jersey Jim Banks, Indiana
Pramila Jayapal, Washington Mark Walker, North Carolina
Joseph D. Morelle, New York James Comer, Kentucky
Susan Wild, Pennsylvania Ben Cline, Virginia
Josh Harder, California Russ Fulcher, Idaho
Lucy McBath, Georgia Ron Wright, Texas
Kim Schrier, Washington Daniel Meuser, Pennsylvania
Lauren Underwood, Illinois Dusty Johnson, South Dakota
Jahana Hayes, Connecticut Fred Keller, Pennsylvania
Donna E. Shalala, Florida Gregory F. Murphy, North Carolina
Andy Levin, Michigan* Jefferson Van Drew, New Jersey
Ilhan Omar, Minnesota
David J. Trone, Maryland
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
SUZANNE BONAMICI, OREGON, Chairwoman
Raul M. Grijalva, Arizona James Comer, Kentucky,
Marcia L. Fudge, Ohio Ranking Member
Kim Schrier, Washington Glenn ``GT'' Thompson,
Jahana Hayes, Connecticut Pennsylvania
David Trone, Maryland Elise M. Stefanik, New York
Susie Lee, Nevada Dusty Johnson, South Dakota
C O N T E N T S
----------
Page
Hearing held on September 10, 2020............................... 1
Statement of Members:
Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
Rights and Human Services.................................. 1
Prepared statement of.................................... 5
Cline, Hon. Ben, Representative of Congress from the State
of Virginia................................................ 6
Prepared statement of.................................... 8
Statement of Witnesses:
Buchert, Ms. Sasha J., Senior Attorney, Lambda Legal......... 25
Prepared statement of.................................... 28
Frye, Ms Jocelyn, Senior Fellow, Center for American Progress 10
Prepared statement of.................................... 12
Gross Graves, Ms. Fatima, J.D., President and CEO National
Women's Law Center......................................... 55
Prepared statement of.................................... 58
Harris, Ms. Samantha K., J.D., Senior Fellow, Foundation for
Individual Rights In Education............................. 41
Prepared statement of.................................... 43
Additional Submissions:
Chairwoman Bonamici:.........................................
Revise Regulations and Enforcement Practices to Recognize
Civil Rights Protections for LGBT Americans and Comply
With the Bostock Decision.............................. 98
Letter dated August 13, 2020 from the Congress of the
United States.......................................... 102
Education/Civil Rights Open Letter on the Rights of LGBTO
+ Students and Staff................................... 106
Letter dated September 8, 2020 from GLSEN................ 114
Remarks for the Record from Schrier, Hon. Kim, a
Representative in Congress from the State of Washington 121
Scott, Hon. Robert C. ``Bobby'', a Representative in Congress
from the State of Virginia:
Letter dated December 20, 2019 from the Committee On
Education and Labor.................................... 122
Prepared statement from Americans United (AU)............ 128
Questions submitted for the record by:
Chairwoman Bonamici
Schrier, Hon. Kim........................................ 146
Comer, Hon. James, a Representative in Congress from the
State of Kentucky...................................... 152
Responses submitted for the record by:
Ms. Buchert.............................................. 153
Ms. Frye................................................. 158
Ms. Gross Graves......................................... 161
Ms. Harris............................................... 174
ON THE BASIS OF SEX:
EXAMINING THE ADMINISTRATION'S
ATTACKS ON GENDER-BASED PROTECTIONS
----------
Thursday, September 10, 2020
House of Representatives
Subcommittee on Civil Rights and Human Services
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 12:33 p.m., in
Room 2175 and via Webex, Rayburn House Office Building. Hon.
Suzanne Bonamici (Chairwoman of the subcommittee) presiding.
Present: Representatives Bonamici, Hayes, Trone, Lee,
Cline, and Johnson.
Also Present: Representatives Scott, and Foxx.
Staff Present: Phoebe Ball, Disability Counsel; Katie
Berger, Professional Staff; Ilana Brunner, General Counsel;
Christian Haines, General Counsel; Sheila Havenner, Director of
Information and Technology; Eli Hovland, Policy Associate;
Ariel Jona, Staff Assistant; Carrie Hughes, Director of Health
and Human Services; Andre Lindsay, Policy Associate; Jaria
Martin, Clerk/Special Assistant to the Staff Director; Eunice
Ikene, Labor Policy Advisor; Richard Miller, Director of Labor
Policy; Katelyn Mooney, Associate General Counsel; Max Moore,
Staff Assistant; Mariah Mowbray, Clerk/Staff Assistant;
Veronique Pluviose, Staff Director; Carolyn Ronis, Civil Rights
Counsel; Theresa Thompson, Professional Staff; Loredana
Valtierra, Education Policy Counsel; Banyon Vassar, Deputy
Director of Information Technology; Cyrus Artz, Minority Staff
Director; Kelsey Avino, Minority Fellow; Gabriel Bisson,
Minority Staff Assistant; Courtney Butcher, Minority Director
of Member Services and Coalitions; Rob Green, Minority Director
of Workforce Policy; Amy Raaf Jones, Minority Director of
Education and Human Resources Policy; John Martin, Minority
Workforce Policy Counsel; Hannah Matesic, Minority Director of
Operations; Alexis Murray, Minority Professional Staff Member;
Ben Ridder, Minority Professional Staff Member; Chance Russell,
Minority Legislative Assistant; Mandy Schaumburg, Minority
Chief Counsel and Deputy Director of Education Policy, and Brad
Thomas, Minority Senior Education Policy Advisor.
Chairwoman Bonamici. I note that a quorum is present. The
subcommittee is meeting today for a hearing to hear testimony
on ``On the Basis of Sex: Examining the Administration's
Attacks on Gender-Based Protections''.
As this is a completely virtual hearing, I ask that all
microphones for Members and witnesses participating remotely be
kept muted as a general rule to avoid unnecessary background
noise. Members and witnesses will be responsible for unmuting
themselves when they are recognized to speak or when they wish
to seek recognition.
Further, pursuant to House Resolution 965 and its
accompanying regulations, Members are required to leave their
cameras on for the entire time they are in an official
proceeding, even if they step away from the camera.
This is an entirely remote hearing, and as such, the
committee's hearing room is officially closed. Members who
choose to sit with their individual devices in the hearing room
must wear headphones to avoid feedback, echoes, and distortion
resulting from more than one person on the software platform
sitting in the same room, as has been reported by other
committees. They are also expected to adhere to social
distancing and safe healthcare guidelines, including the use of
masks, gloves, and wiping down their areas, both before and
after their presence in the hearing room.
Although a roll call is not necessary to establish a quorum
in official proceedings, conducted remotely, whenever there is
an official proceeding with remote participation, the Clerk
will call the role to help make clear who is present at the
start of the proceeding. So at this time, I ask the Clerk to
call the roll.
The Clerk. Ms. Bonamici?
Chairwoman Bonamici. Present.
The Clerk. Mr. Grijalva?
[No response.]
The Clerk. Ms. Fudge.
[No response.]
The Clerk. Ms. Schrier?
[No response.]
The Clerk. Mrs. Hayes?
Mrs. Hayes. Present.
The Clerk. Mr. Trone.
[No response.]
The Clerk. Mrs. Lee?
Mrs. Lee. Present.
The Clerk. Chairman Scott?
Mr. Scott. Present.
The Clerk. Mr. Cline?
Mr. Cline. Present.
The Clerk. Mr. Thompson?
[No response.]
The Clerk. Ms. Stefanik?
[No response.]
The Clerk. Mr. Johnson?
Mr. Johnson. Present. Thank you.
The Clerk. Mrs. Foxx?
[No response.]
The Clerk. Chairwoman Bonamici, this concludes the roll
call.
Chairwoman Bonamici. Thank you so much. And I do want to
welcome--
Mrs. Foxx. I am not sure you heard me because I think I was
muted. This is Virginia Foxx.
The Clerk. You are present. Thank you.
Chairwoman Bonamici. And I want to welcome Mr. Cline to the
subcommittee in his first hearing as Ranking Member.
So, opening statements, pursuant to Committee Rule 7(c),
opening statements are limited to the Chair and Ranking Member.
This will allow us to hear from our witnesses sooner and
provides all members with adequate time to ask questions.
So I recognize myself now for the purpose of making an
opening statement.
In the last 4 years the Trump Administration has taken many
actions that erode civil rights protections for women and LGBTQ
individuals. Today we will discuss the effects of these actions
on our schools, workplaces, and healthcare system.
One of the Administration's most recent and well-known
attacks on gender based civil rights is its changes to the rule
implementing Title IX. Under Title IX of the Educational
Amendments of 1972 schools have a responsibility to provide
equal access to education for all students. As part of Title
IX's requirements, schools receiving federal funding, including
institutions of higher education and K-12 schools, must take
certain steps to address sexual misconduct that inhibits
students' safety or access to education.
Title IX is a necessary tool for protecting students'
rights at a time when one in five women experience sexual
assault during college. Yet, in May Secretary DeVos finalized a
harmful rewrite of the Title IX rule. Problems with the DeVos
Title IX rule include but are not limited to the following: The
DeVos rule makes it harder for sexual assault survivors to
receive justice by increasing the burden of proof beyond what
other civil rights laws require, enforcing survivors to endure
live cross-examination. These changes are likely to discourage
survivors from reporting instances of sexual harassment and
assault, which are already under reported. Another part of the
rule gives colleges a pass if an incident is reported to the
wrong person and it significantly narrows the definition of
sexual assault to one that will excuse large swaths of sexual
misconduct under Title IX. Furthermore, only schools found to
be deliberately indifferent to complaints will be considered in
violation of Title IX.
This rule is simply too burdensome for survivors and it
fails to hold institutions accountable for protecting students.
There is no appropriate time for the Federal Government to
erect barriers to justice for survivors of sexual assault, but
the Administration's decision to finalize this rule in the
middle of the COVID-19 pandemic was a stunning display of
callousness.
I also want to express my profound opposition to the
Education Department's refusal to halt its efforts to restrict
the rights of transgender students. In Bostock versus Clayton
County the Supreme Court recently held that prohibitions
against discrimination on the basis of sex prohibit
discrimination against LGBTQ individuals. Although the decision
was under Title VII because it was in the context of
employment, Title IX was essentially modeled on Title VII.
There is no rational reason why ``on the basis of sex'' should
be interpreted differently. In fact, the Supreme Court in
Bostock held that it is impossible to discriminate against a
person for being gay or transgender without discriminating
against that individual based on sex. Despite that clear
language, the Department continues to ignore the holding in
that case, that case from the United States Supreme Court.
As we speak, the Trump Administration is also threatening
to strip funding from Connecticut schools that allow
transgender athletes to compete according to their gender
identity. This threat is cruel and harmful. As cash strapped
schools face unprecedented challenges related to COVID-19, the
Department is using Federal funding to coerce these schools
into harming transgender students. We must condemn this
behavior in the strongest possible terms and the Department
should immediately rescind its efforts aimed at singling out
and humiliating transgender students.
The Trump Administration's record on removing civil rights
protections against gender bias in the workplace is equally as
offensive. During the President's first year in office he
turned his back on LGBTQ workers by systemically erasing
workforce protections. In October of 2017 the Administration
reversed an Obama-era policy that clarified transgender workers
are protected from discrimination under Title VII of the Civil
Rights Act. The very next day the Department of Justice issued
sweeping guidance that gave federal agencies license to
discriminate against LGBTQ workers in a memo that stated that
the DOJ would take the position that Title VII's prohibition on
sex discrimination does not include gender identity, including
transgender status.
In response, the House passed the Equality Act, the stark
proposal to secure LGBTQ rights and to prohibit discrimination.
As I mentioned, the Supreme Court's decision in Bostock made
clear the federal civil rights protections on the basis of sex
covers sexual orientation and gender identity. But that
decision does contain some potential loopholes that could be
used in an attempt to justify discrimination. So it is an
important but incomplete step toward providing LGBTQ workers
the workplace protections they deserve. That is why we need the
Equality Act.
Another concern is the Administration's efforts to
eliminate the collection of pay data by the Equal Employment
Opportunity Commission. This was an effort to obscure gender-
based pay discrimination as well as race discrimination and
provide cover to employers that failed to provide equal pay for
equal work. The decision to end the collection of pay data is
an unprecedented setback for the enforcement of Title VII,
Executive Order 11246, and the Equal Pay Act.
Another serious consequence of the Trump Administration's
gender-based attacks is in the area of healthcare. As we
continue to confront the COVID-19 pandemic, the Administration
continues to restrict access to healthcare. Specifically, the
Administration has tried to rollback an Obama-era rule that
strengthened the anti-discrimination provisions in the
Affordable Care Act known as Section 1557. Section 1557 is
designed to prohibit discrimination against patients on the
basis of race, color, national origin, sex, age, or disability.
On June 19, at a time when our Nation eclipsed more than 2
million confirmed COVID-19 cases and there had been more than
114,000 confirmed and probable deaths, a number that has sadly
risen since June, the Administration removed the explicit
provisions that protected against discrimination based on
pregnancy and pregnancy termination and instead restored an
outdated interpretation of sex discrimination that excludes
gender identity. In other words, a rule that was meant to
guarantee proper care for women and LGBTQ people was contorted
in a way that means they can be denied care in the middle of a
global pandemic.
Although the rollback of Section 1557 was put on hold by a
Federal Court, it still looms as a threat to the health and
well-being of millions of Americans.
We are in challenging times. Millions of Americans have
lost their jobs, their health insurance, and thousands have
lost their lives. This Nation deserves better.
I thank our distinguished witnesses for being here today
and I look forward to the discussion.
I now yield to Mr. Cline for an opening statement.
[The statement of Chairwoman Bonamici follows:]
Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee
on Civil Rights and Human Services
In the past four years, the Trump administration has taken many
actions that erode civil rights protections for women and LGBTQ
individuals.
Today, we will discuss the effects of these actions on our schools,
workplaces, and health care system.
One of the administration's most recent and well-known attacks on
gender-based civil rights is its changes to the rule implementing Title
IX.
Under Title IX of the Educational Amendments Act of 1972, schools
have a responsibility to provide equal access to education for all
students. As part of Title IX's requirements, schools receiving federal
funding--including institutions of higher education and K-12 schools--
must take certain steps to address sexual misconduct that inhibits
students' safety or access to education.
Title IX is a necessary tool for protecting students' rights at a
time when one in five women experience sexual assault during college.
Yet in May, Secretary DeVos finalized a harmful rewrite of Title IX
rule.
Problems with the DeVos Title IX rule include:
* The DeVos rule makes it harder for sexual assault survivors to
receive justice by increasing the burden of proof beyond what other
civil rights laws require and forcing survivors to endure live cross
examination. These changes are likely to discourage survivors from
reporting instances of sexual harassment and assault, which are already
severely underreported.
* Another part of the rule gives colleges a pass if an incident is
reported to the wrong person, and it significantly narrows the
definition of sexual assault to one that will excuse large swaths of
sexual misconduct under Title IX.
Furthermore, only schools found to be ``deliberately indifferent''
to complaints will be considered in violation of Title IX. Due process
protections must be maintained during these procedings, but the DeVos
rule is too burdensome for survivors while failing to hold institutions
accountable for protecting students.
There is no appropriate time for the federal government to erect
barriers to justice for survivors of sexual assault, but the
administration's decision to finalize this rule in the middle of the
COVID-19 pandemic was a stunning display of callousness.
I also want to express my profound opposition to the Education
Department's refusal to halt its efforts to restrict the rights of
transgender students. In Bostock v. Clayton Count, the Supreme Court
recently held that prohbitions against discrimination ``on the basis of
sex'' prohibit discrimination against LGBTQ individuals. Although the
decision was under Title VII because it was in the context of
employment, Title IX was essentially modeled on Title VII so there is
no rational reason why ``on the basis of sex'' should be interpreted
differently. In fact, the Supreme Court in Bostock states ``it is
impossible to discriminate against a person for being homosexual or
transgender without discriminating against that individual based on
sex.''
Despite that clear language, the Department continues to ignore the
holding in that Supreme Court case.
As we speak, the Trump administration is also threatening to strip
funding from Connecticut schools that allow transgender athletes to
compete according to their gender identity.
This threat is cruel and harmful. As cash-strapped schools face
unprecedented challenges related to COVID-19, the Department is using
federal funding to coerce these schools into harming transgender
students. We must condemn this behavior in the strongest possible
terms, and the Department should immediately rescind all efforts aimed
at signaling out and humiliating transgender students.
The Trump administration's record on removing civil rights
protections against gender bias in the workplace is equally as
offensive.
During the President's first year in office he turned his back on
LGBTQ workers by systematically erasing workforce protections. In
October 2017, the administration reversed an Obama-era policy that
clarified that transgender workers are protected from discrimination
under Title VII of the Civil Rights Act.
The very next day, the Department of Justice issued sweeping
guidance that gave federal agencies license to discriminate against
LGBTQ workers in a memo that stated the DOJ would take the position
that Title VII's prohibition on sex discrimination does not include
gender identity, including transgender status.
In response, the House passed the Equality Act, a historic proposal
to secure LGBTQ rights and to prohibit discrimination.
As I mentioned, the Supreme Court's decision in Bostock made clear
that federal civil rights protections on the basis of sex covers sexual
orientation and gender identity. But that decision does contain some
potential loopholes that could be used in an attempt to justify
discrimination, so it is an important but incomplete step toward
providing LGBTQ workers the workplace protections they deserve.
Another concern is the administration's efforts to eliminate the
collection of pay data by the Equal Employment Opportunity Commission.
This was an intentional effort to obscure gender-based pay
discrimination, as well as race discrimination, and provide cover to
those employers that fail to provide equal pay for equal work. The
decision to end the collection of pay data is an unprecedented setback
for the enforcement of Title VII, Executive Order 11246, and the Equal
Pay Act.
Another serious consequence of the Trump administration's gender-
based attacks is in the area of health care. As we continue to confront
the COVID-19 pandemic, the administration continues to restrict access
to health care.
Specifically, the administration has tried to roll back an Obama-
era rule that strengthened anti-discrimination provisions in the
Affordable Care Act, known as Section 1557.
Section 1557 is designed to prohibit discrimination against
patients on the basis of race, color, national origin, sex, age, or
disability. On June 19, 2020 - as our nation eclipsed 2.2 million
confirmed COVID-19 cases and more than 114,000 confirmed and probable
deaths - (COVID Tracking Project) the administration removed the
explicit provisions that protected against discrimination based on
pregnancy and pregnancy termination, and instead restored an outdated
interpretation of sex discrimination that excludes gender identity.
In other words, a rule that was meant to guarantee proper care for
women and LGBTQ people was contorted into a means of denying them care
in the middle of a global pandemic.
Although the rollback of Section 1557 was put on hold by a federal
court, it still looms as a threat to the health and well-being of
millions of Americans.
These are challenging times. Millions of Americans have lost their
jobs and health insurance - and thousands have lost their lives.
This nation deserves better.
Thank you to our distinguished witnesses for being here today. I
look forward to today's discussions and now yield to Mr. Cline for an
opening statement.
______
Mr. Cline. Thank you, Madam Chair. I appreciate the
opportunity to serve with you on the subcommittee and am
looking forward to continuing the great work that this
subcommittee has done in previous efforts.
Prior to coming to Congress I was proud to serve as a
prosecutor locally in domestic violence cases to ensure that
justice was done. Additionally, during my time as a delegate in
the Virginia State House I authored several bills to increase
protections for such victims and their families. And since I
arrived in Congress I have worked across the aisle to introduce
legislation alongside Congresswoman McBath to allow funds
allotted through the Family Violence Prevention Services Act to
still be accessed by removing certain requirements during the
pandemic.
Here in Congress this committee has created protections for
pregnant woman, students, and workers alike so they can live,
work, and learn in environments free from violence and
discrimination. I know I speak for all my colleagues here today
when I say no one should ever be denied an opportunity because
of unlawful discrimination.
That is why my Republican colleagues and I consistently
support legislation that aligns with protections defined under
existing civil rights laws. These very laws are what ensure the
fairness I mentioned earlier in classrooms and workplaces
across the country.
Unfortunately, the same cannot be said for my colleagues on
the other side of the aisle. The majority will often cherry
pick who does and does not deserve protections. Democrats have
undermined students' rights and fundamental fairness under
Title IX of the Education Amendments of 1972. In 2011 the Obama
Administration issued guidance that created significant
controversy and confusion. Many criticized the guidance for
undermining due process rights for involved parties and for
denying public review and comment from affected stakeholders.
In fact, multiple court cases have struck down campus
procedures that resulted from the guidance.
The Trump Administration addressed this past wrongdoing by
taking over 124,000 public comments into consideration while
drafting a rule that defines the responsibilities of
institutions to respond to allegations of sexual harassment,
including sexual assault under Title IX. Some have been
critical of the Education Department's updated Title IX rule
despite the fact that the rule is rooted in our deepest time
tested legal traditions that requires schools to take all
allegations of sexual harassment, including sexual assault,
seriously, and to support and protect survivors during every
step of the process. This rule will help ensure that all
students can pursue education free from discrimination,
harassment, and sexual violence. And we owe it to survivors to
ensure that clear and fair procedures are in place to respond
to sexual violence. The Department of Education's Title IX rule
delivers on this front.
The majority has also consistently tried to roll back
protections that allow religious organization to operate in
accordance with their sincerely held religious beliefs. In
fact, they slammed a proposed rule announced last year by the
Department of Labor to protect religious liberty. Religious
organizations have been discouraged from seeking federal
contracts because of uncertainty surrounding the requirements
for religious organizations. The Department of Labor's proposed
rule clarifies the protections given to religious organizations
that contract with the Federal Government. DOL rightly
considered recent Supreme Court decisions regarding the
religious freedom of employers, which affirmed the limitations
on the government to infringe on the free exercise of religion.
Not only does this proposed rule protect religious liberty, it
also benefits both the contracting system and taxpayers by
encouraging additional qualified organizations to bid for
contracts which will increase competition and provide needed
goods and services that may otherwise not be available.
The bottom line is all Americans deserve to learn and work
in an environment free from discrimination based on their sex
or religion. Committee Republicans have and will continue to
advocate for policies that allow students to learn and
employees to work in environments free from discrimination.
While I look forward to the testimony from our witnesses
today, I would like to point out that the majority only allowed
the minority to invite one witness to cover a very broad set of
issues. Unfortunately, this structure will limit the
subcommittee's ability to have a robust discussion today on how
to best ensure Americans can pursue an education and a career
in positive environments.
Thank you, Madam Chair, and I yield back.
[The statement of Mr. Cline follows:]
Prepared Statement of Hon. Ben Cline a Representative of Congress from
the State of Virginia
Prior to coming to Congress, I was proud to serve as a prosecutor
of domestic violence cases to ensure justice was carried out.
Additionally, during my time as a Delegate in Virginia's General
Assembly, I authored several bills to meaningfully increase protections
for such victims and their families. Furthermore, while in Congress, I
have worked across the aisle to introduce H.R. 6685 with Congresswoman
McBath to allow funds allotted through the Family Violence Prevention
Services Act to still be accessed during the pandemic. Here in
Congress, our committee has created protections for pregnant women,
students, and workers alike so they can live, work, and learn in
environments free from discrimination. I know I speak for all my
colleagues here today when I say no one should ever be denied an
opportunity because of unlawful discrimination.
That's why my Republican colleagues and I consistently support
legislation that aligns with protections defined under existing civil
rights laws. These very laws are what ensure the fairness I mentioned
earlier in classrooms and workplaces across the country.
Unfortunately, the same cannot be said for my colleagues on the
other side of the aisle. Democrats cherry pick who does and does not
deserve protections.
Democrats have undermined students' rights and fundamental fairness
under Title IX of the Education Amendments of 1972. In 2011, the Obama
administration issued guidance that created significant controversy and
confusion. Many criticized the guidance for undermining due process
rights for involved parties and for denying public review and comment
from affected stakeholders. In fact, multiple court cases have struck
down campus procedures that resulted from the guidance.
The Trump administration addressed this past wrongdoing by taking
over 124,000 public comments into consideration while drafting a rule
that defines the responsibilities of institutions to respond to
allegations of sexual harassment, including sexual assault, under Title
IX.
Many Democrats have been critical of the Education Department's
updated Title IX rule despite the fact that the rule is rooted in our
deepest, time-tested legal traditions. It requires schools to take all
allegations of sexual harassment, including sexual assault, seriously,
and support and protect survivors during every step of the process.
This rule will help ensure that all students can pursue education
free from discrimination, harassment, and sexual violence, and we owe
it to survivors to ensure that clear and fair procedures are in place
to respond to sexual violence. The Department of Education's Title IX
rule delivers on this front.
Democrats have also consistently tried to roll back protections
that allow religious organizations to operate in accordance with their
sincerely held religious beliefs.
In fact, Democrats slammed a proposed rule announced last year by
the Department of Labor (DOL) to protect religious liberty. Religious
organizations have been discouraged from seeking federal contracts
because of uncertainty surrounding the requirements for religious
organizations. DOL's proposed rule clarifies the protections given to
religious organizations that contract with the federal government. DOL
rightly considered recent Supreme Court decisions regarding the
religious freedom of employers, which affirmed the limitations on the
government to infringe on the free exercise of religion. Not only does
this proposed rule protect religious liberty, it also benefits both the
contracting system and taxpayers by encouraging additional qualified
organizations to bid for contracts, which will increase competition and
provide needed goods and services that may otherwise not be available.
Bottom line, all Americans deserve to learn and work in an
environment free from discrimination based on their sex or religion.
Committee Republicans have and will continue to advocate for policies
that allow students to learn and employees to work in environments free
from discrimination.
While I look forward to the testimony from our witnesses, I'd like
to point out that my Democrat colleagues only allowed Republicans to
invite one witness to cover a very broad set of issues. Unfortunately,
this structure will limit the Subcommittee's ability to have a robust
discussion today on how to best ensure Americans can pursue an
education and a career in positive environments.''
______
Chairwoman Bonamici. Thank you, Ranking Member Cline.
All other Members who wish to insert written statements
into the record may do so by submitting them to the Committee
Clerk electronically in Microsoft Word format by 5:00 p.m. on
Thursday, August 24th. I will now introduce our witnesses.
Jocelyn Frye is a senior fellow at the Center for American
Progress where she focuses on a wide range of women's economic
security and employment issues. Prior to joining the Center
Frye served for 4 years as deputy assistant to President Obama
and director of policy and special projects for First Lady
Obama overseeing the broad issue portfolio of the First Lady.
Next, Sasha Buchert is a senior attorney in the Washington,
DC office of Lambda Legal, the oldest and largest organization
dedicated to advancing the civil rights of lesbians, gay men,
bisexuals, transgender people, and people living with HIV.
Before joining Lambda Legal Sasha served as staff attorney and
policy counsel at the Transgender Law Center. Sasha was the
first openly transgender person to be appointed to an Oregon
State Board, and from 2012 to 2013 she served as chair of the
Oregon State Hospital Advisory Board. I welcome an Oregonian to
the panel.
Next, Samantha Harris is a senior fellow at the Foundation
for Individual Rights and Educations, FIRE, an advocacy group
defending and sustaining the individual rights of students and
faculty members at Americas colleges and universities. Ms.
Harris has held several positions at FIRE, including vice
president for procedural advocacy and director of policy
research. Additionally, Ms. Harris serves as counsel at the law
firm Mudrick & Zucker, representing students and faculty
members.
And, finally, Fatima Goss Graves is president and CEO of
the National Women's Law Center. She is among the co-founders
of the Times Up Legal Defense Fund, which connects those who
experience sexual misconduct in the workplace with legal and
public relations assistance. She has held many positions at
NWLC including senior vice president for program and vice
president for education and employment. She led the Center's
anti-discrimination initiatives with a particular focus on
outcomes for women and girls of color.
Instructions to our witnesses, we appreciate the witnesses
for participating today and we would look forward to your
testimony. I remind the witnesses that we have read your
written statements and they will appear in full in the hearing
record.
Pursuant to Committee Rule 7(d) and committee practice,
each of you is asked to limit your oral presentation to a five
minute summary of your written statement.
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willfully falsify any statement, representation, writing,
document, or material fact presented to Congress or otherwise
conceal or cover up a material fact.
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I will first recognize Ms. Frye for five minutes.
TESTIMONY OF JOCELYN FRYE, SENIOR FELLOW, CENTER FOR AMERICAN
PROGRESS
Ms. Frye. Thank you, Madam Chair Bonamici and Ranking
Member Cline, Members of the subcommittee. Also I want to
acknowledge Chairman Scott and Ranking Member Foxx. Thank you
for the invitation to be here. It is a true privilege.
My name is Jocelyn Frye. I am a senior fellow at the Center
for American Progress. The Center is a think tank devoted to
progressive values and improving the lives of all Americans.
And I work with our women's initiative that has focused on
expanding employment and economic opportunities for women
because we believe that women are integral to the economic
progress of our Nation now and in the future.
As you well know, this hearing occurs at a critical moment
both in terms of the economic crisis that we are dealing with
because of the global pandemic, but also because we are engaged
in a robust and important conversation about the presence of
system racism and other forms of bias. And I think both of
those conversations are relevant today because it is critical
to create equitable workplaces and to really challenge systemic
practices that for years have depressed the wages and
opportunities for women.
And it is precisely because of the urgency of those issues
that we have opposed some of the actions of the Trump
Administration specifically that undermine workplace
enforcement and key protections that women often depend on. I
am going to just highlight a few of those actions and then I am
happy to respond to questions.
On equal pay, as the Chair alluded to, one of the actions
that has been most troubling is the Administration's decision
to discontinue the collection of pay data. The collection of
pay data is critical to enforcement. And the rule that was
adopted during the Obama Administration was really an effort to
close a gap in the information that was available to
enforcement agencies. And the decision of this Administration
to decline to continue that will impact the ability to ensure
progressive and robust enforcement going forward.
I also want to call attention to the decision of the Fair
Pay and Safe Workplaces Executive Order. There are a couple of
provisions that are particularly relevant to our conversations,
one on pay transparency that would have given employees better
information about their pay to ensure they are being paid
fairly. There is also a provision dealing with arbitration and
preventing the use of pre-dispute arbitration provisions that
can curb the ability of workers to bring discrimination claims
and sexual harassment and assault claims. Both of those
provisions were--the loss of those are problematic.
I also want to draw attention to the issue of just the
wholesale curb of protections for LGBTQI+ workers. In addition
to the reinterpretation of Title VII to exclude workers who are
transgender and to limit the ability to bring cases based on
gender identity, the Administration has also sought to
undermine protections in federal contracting using religious
freedom as an excuse to permit discrimination. And while we
certainly respect the right of religious freedom, we also don't
think that should be used as an excuse for discrimination and
it is a misuse of the Executive Order of power.
There are other measures that I will be happy to discuss. I
do want to draw attention to some newer things that we are
seeing, including there is a new rule that we have seen from
the EEOC that may make it easier for employers to effectively
delay litigation by trying to just inject repeated requests for
conciliation. Obviously, want employers and the Commission to
be able to engage in conciliation, but we don't want it to be
used as a tool to delay the ability of the Commission to move
forward when needed.
I also would be remiss if I didn't mention things that they
could be doing. In addition to reinstating the pay data
disclosure, we should be thinking about new measures. The UK
does a pay data disclosure where they require employers to
publish their wage gap. We should be thinking about ways to
challenge things like intersectional discrimination and the
experiences faced by women of color.
I think at the end of the day what is most important is to
have robust enforcement of the law that gives us confidence
that this Administration is committed to equal employment
opportunity.
Thank you.
[The statement of Ms. Frye follows:]
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Chairwoman Bonamici. Thank you for your testimony.
Next we will hear from Ms. Buchert for five minutes.
TESTIMONY OF SASHA JEAN BUCHERT, SENIOR ATTORNEY, LAMBDA LEGAL
Ms. Buchert. Good afternoon, Chairwoman Bonamici, Ranking
Member Cline, and distinguished members of the committee. Thank
you for the opportunity to testify during this important
hearing.
My name is Sasha Buchert and I am a senior attorney at
Lambda Legal and I am also a daughter, a sister, Marine Corps
veteran, and a proud transgender women.
This hearing follows 3\1/2\ years of relentless attacks by
the Trump-Pence Administration targeting LGBTQ people in a wide
range of contexts, including, to name just a few examples, the
ban on open transgender military service, attacks targeting
transgender students, LGBTQ workers, immigrants, prisoners,
elders, transgender homeless people and, as this testimony will
identify, LGBTQ patients.
And no federal agency has targeted LGBTQ people more than
the U.S. Department of Health and Human Services, the agency
tasked with enhancing the health and well-being of all
Americans. Lambda Legal has now filed six different lawsuits
against HHS in the last 3\1/2\ years to block administrative
changes that invite harm to our community.
One of the most pernicious attacks from HHS came less than
3 months ago, well into the pandemic, when HHS chose to
finalize a rule seeking to carve out clarification that LGBTQ
people, women, and other vulnerable communities are protected
under the non-discrimination provisions of Section 1557 of the
Affordable Care Act. HHS announced the final rule on Friday,
June 12, and the following Monday the Supreme Court issued the
Bostock decision in which Justice Gorsuch clarified in his 6-3
majority opinion that it is impossible to discriminate against
a person for being gay or transgender without discriminating on
the basis of sex. In response to this very clear Supreme Court
precedent concerning a statute that is written consistently
with Title IX, members of the community and policy makers
quickly informed HHS that the proposed rule conflicts with this
decision and urged them to withdraw the rule, but HHS would not
be deterred. Less than 5 days later after the Bostock decision
was issued, HHS barreled forward and published the final rule
on the following Friday without a single mention of the Bostock
ruling.
HHS's refusal to address the Bostock decision is
breathtaking and manifests a stunning disregard for the rule of
law and reveals the agency's single-minded pursuit to strip
life-saving protections from LGBTQ people and other vulnerable
communities. Unsurprisingly, the rule has already been enjoined
by two different Federal Courts for this very reason.
In another example of HHS's repudiation of its purpose and
mission, HHS issued the grants rule on November 19, 2019, which
seeks to eliminate express non-discrimination protections for
people seeking HHS programs and services. HHS grants $525
billion a year to millions of people on a wide array of
programming that includes HIV prevention programs, programs
servicing older Americans, like Meals on Wheels, programs
servicing youth experiencing homeless, and early childhood
programs like Head Start. The rule if finalized and enforced
would have a devastating impact on LGBTQ people, but especially
it would have a devastating impact on youth. There are more
than 125,000 youth who cannot safely return to their families
of origin waiting to be adopted into the stable and loving
homes, and it is reprehensible that HHS is seeking to allow
agencies to turn away competent, loving, foster, and adoptive
parents and jeopardizing that opportunity for placement, for
permanency and placement.
And yet one more example of HHS turning its mission on its
head is HHS issued a final rule in May of 2019 that, among
other things, improperly sought to expand statutory religious
exemptions to greatly expand the number of people who could
claim it and the kinds of healthcare than can be denied,
essentially inviting healthcare providers to deny LGBTQ people
healthcare treatment. The justification for that rule is they
had supposedly received a significant number of complaints from
religiously affiliated healthcare providers over a 2-year
period. They said they had received 358, but in the course of
litigation it came to light that almost 80 percent of those
were vaccination-relatedvaccination complaints which HHS
concedes were duplicates.
In closing I would just say that although these attacks
continue to be struck down by the Federal Courts they don't
come without a cost. The rules place healthcare providers in
legal jeopardy by falsely telling them that it is fine to
discriminate, but more concerning, the rule making fosters
discrimination against LGBTQ patients and discourages people
from seeking healthcare in the first place. And the rule would
of course fall hardest on those already marginalized
communities, including people of color, people living with low
incomes, women, and LGBTQ people.
Thank you so much for the opportunity to testify and I look
forward to your questions.
[The statement of Ms. Buchert follows:]
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Chairwoman Bonamici. Thank you for your testimony.
And I now recognize Ms. Harris for five minutes.
TESTIMONY OF SAMANTHA K. HARRIS, J.D., SENIOR FELLOW,
FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION
Ms. Harris. Chairwoman Bonamici, Ranking Member Cline, and
distinguished Members of this subcommittee, thank you for
allowing me the opportunity to testify here today.
The new Title IX regulations are not an attack on gender
based protections, rather, they restore Title IX's original
focus on a complainant's access to education. They realign with
decades of regulatory and judicial decision making about Title
IX and they clarify and standardize disciplinary procedures
following numerous court decisions about what Title IX and due
process clause require of colleges and universities in these
cases. In all of these regards the new regulations are a sorely
needed correction to a system that had strayed very far from
its original purpose. The focus on access to education is
evident in the regulation's requirement that colleges and
universities offer supportive measures to all complainants
whether or not they file a formal complaint.
The regulations also returned control to complainants in
other important ways, such as by allowing for informal
resolution when both parties prefer that route and by ensuring
that medical records cannot be used without a party's consent.
The regulations also restore a definition of harassment and
a jurisdictional scope that were established by the Supreme
Court in Davis v. Monroe County Board of Education. After Davis
was decided in 1999, the Clinton Administration's OCR issued
guidance in 2001 explicitly stating that although Davis
concerned the liability context, ``the definition of hostile
environment, harassment, sexual harassment used by the Court in
Davis is consistent with the definition'' used by the
Department for administrative enforcement. OCR further stated
that ``schools benefit from consistency and simplicity in
understanding what is sexual harassment for which the school
must take responsive action''. A multiplicity of definitions
would not serve this purpose.
The Department departed radically from this in the years
between 2011 and 2017 when it instructed schools to define
sexual harassment far more broadly and at public institutions
unconstitutionally as ``any unwelcome conduct of a sexual
nature''. The 2001 guidance did use the phrase`` unwelcome
conduct of a sexual nature'' to generally describe sexual
harassment, but it was not, as some argued, the operative
definition in that guidance. Rather, the Department adopted an
operative definition that it asserted was consistent with the
one set forth in Davis.
Similarly, the jurisdictional limitations imposed by the
regulations come directly from the Supreme Court's decision in
Davis where the Court stated that ``the language of Title IX,
which again addresses only discrimination that occurs under an
education program or activity, cabins the range of misconduct
that the statute prescribes''. The Court wrote that the
statute's plain language confines the scope of prohibited
conduct based on the recipient's degree of control over the
harasser and the environment in which the harassment occurs.
The Supreme Court has defined the jurisdiction limits of Title
IX. It is not within the authority of an agency to ignore those
limitations.
Finally, the regulations establish uniform fair procedures
for institutions to use in adjudicating sexual misconduct
complaints. In response to the hundreds of lawsuits from
respondents who allege they were denied a fair process, there
has emerged a patchwork of case laws surrounding Title IX such
that one's right in a Title IX proceeding depend on where one
lives and attends college. It fell to the Department of
Education, therefore, to standardize the rights of students
under what is, after all, a federal civil rights statute. This
is the agency's proper role and statutory charge. Moreover, the
Department is obligated to ensure that students' constitutional
rights, including First Amendment and due process rights, are
not violated in the implementation of Title IX. And that has
been a rampant problem over the past 10 years.
The procedural safeguards in the new regulations--live
hearing, cross-examination, meaningful notice, and access to
evidence, and the presumption of innocence, are all things that
various courts have held are part of students' due process
rights. Now these essential provisions will protect all
students.
Thank you very much for your time and I look forward to
answering your questions.
[The statement of Ms. Harris follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you for your testimony.
And I now recognize Ms. Goss Graves for five minutes. You
will need to unmute yourself.
TESTIMONY OF FATIMA GOSS GRAVES, J.D., PRESIDENT AND CEO
NATIONAL WOMEN'S LAW CENTER
Ms. Goss Graves. Apologies. Thank you, Chairwoman Bonamici,
Ranking Member Cline, Chairman Scott, Ranking Member Foxx, and
other Members of the subcommittee.
I am Fatima Goss Graves, president and CEO of the National
Women's Law Center. Founded the same year that Title IX was
passed, the Law Center has worked to remove barriers to women
and girls in education, childcare, income security, the
workplace, and healthcare for nearly 5 decades and I very much
appreciate the opportunity to testify today.
My testimony will begin with the Administration's new Title
IX rule that went into effect last month, which the National
Women's Law Center has challenged in court.
The rule comes as harassment in school remains alarmingly
high, including 56 percent of girls and 40 percent of boys in
K-12 schools who report experiencing harassment. And as a 2019
report found, about 1 in 4 women and 1 in 15 men in college
experience sexual assault. And LGBTQ students, students of
color, and students with disabilities experience sexual
violence at higher rates than other students.
The student survivors we hear from at the Law Center
recount what happens when schools that don't meet their Title
IX obligations. They have struggled to stay in school and have
been expelled for lower grades, they have been suspended after
being blamed for their assault, they have been discouraged from
reporting and met with unfair skepticism. We have heard about
schools that process these that have treated survivors unfairly
and in some cases they endured those traumatic processes with
no outcomes that improve their situations.
And this new Title IX rule puts students in schools in a
terrible position. Under this rule schools are required to
dismiss many kinds of Title IX complaints. But no school should
be even allowed, much less required to dismiss a complaint
simply because the student was raped at an off campus party or
because each incident of the harassment they endured for months
isn't considered severe by itself, or because the student
dropped out of school when it was hard to be in the same class
as their assailant. Nor should schools be allowed to ignore
complaints because the respondent graduated or because a
student reported it to a coach rather than to the dean.
And it is simply unfair to require schools to have hostile
grievance procedures only for sexual harassment complaints.
This includes the new requirement that in higher education any
party and any witness that led to direct live and oral cross-
examination--it is a reminder that these are not courtrooms and
the rules of evidence don't apply. And that cross-examination
can come from an angry parent or from a fraternity brother. No
such requirements exist for addressing any other form of
misconduct at schools, including other forms of discrimination
or even a fist fight among students. This is a rule that sends
a giant message that survivors are uniquely unreliable. And
implicit in such a requirement is a deep-rooted skepticism of
sexual assault itself.
The Department may claim that the rule will restore
confidence in school proceedings, but the rule will prohibit
schools from considering a broad swath of relevant evidence,
broader than in courtrooms or in any other type of
administrative hearing. It may claim that the rule helps
survivors, but survivors have been fighting so hard these last
3 years to stop this very rule. And let me be clear, the
survivors we work with are deeply invested in due process. They
want to be treated fairly in these proceedings and that is what
fair process is about. And the outcome of the rule is that
schools will be less safe.
The other area I wish to highlight is this Administration's
attack on transgender students. Indeed, one of Secretary DeVos'
first official actions was to rescind key civil rights guidance
on protecting transgender students from discrimination under
Title IX. It has now been 3 months since the Supreme Court
decided the Bostock decision. In that case the Supreme Court
made clear that Title VII of the Civil Rights Act ban on sex
discrimination prohibits discrimination based on sexual
orientation and gender identity. Following that historic
decision, Federal Courts again have confirmed that transgender
students are protected under Title IX.
Yet in recent Title IX enforcement letters the Department
attempted to limit the reasoning in Bostock to exclude
transgender students from civil rights protection. It actually
took the extraordinary step of threatening to take away federal
funding from entities that refused to exclude transgender
students from participating in sports. This extra step to argue
that policies that protect trans students from discrimination
are a Title IX violation is such a dangerous distortion of law
and of precedent.
In sum, the last thing I have here is we have witnessed
this Administration turn Title IX on its head and we believe
students in this country deserve better.
Thank you for the opportunity to be here today and I look
forward to any questions.
[The statement of Ms. Gross Graves follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you again to all of our
witnesses.
Under Committee Rule 8(a) we will now question witnesses
under the five minute rule. I will be recognizing subcommittee
Members in seniority order. And to ensure that the Member's
five minute rule is adhered to staff will be keeping track of
time and will use the lovely chime to signal when 1 minute is
left and when time is up entirely. The short chime will chime
when there is 1 minute and the longer chime when time is up, so
please be attentive to the time.
Again, if a member experiences technical difficulties
please stay connected on the platform, make sure you are muted,
and immediately call the committee's IT director, Sheila
Havener, whose number has been provided.
And I am going to start by recognizing the chairman of the
full committee, Mr. Scott. You are recognized for five minutes
for your questions.
Mr. Scott. Thank you. Thank you, Madam Chair, thank you for
your courtesy of allowing me to go first.
First, I would like unanimous consent to enter into the
record a statement from Americans United for Separation of
Church and State.
Chairwoman Bonamici. Without objection.
Mr. Scott. Thank you.
Ms. Frye, one of the things that concerns me about
discrimination with this Administration is that it used to be
the weight of the Federal Government would be on the side of
the victim of discrimination. That used to be the person trying
to get a job or trying to eat at a restaurant, but now
apparently if you look at the Office of Federal Contract
Compliance Programs, OFCCP, they have a regulation that would
bring the weight of the Federal Government on the side of
federal contractors who want to discriminate because of certain
religious beliefs so that not the person seeking a job would
have the weight of the government protecting him, but the
employer who wants to discriminate would have the weight of the
Federal Government protecting that right to discriminate. And
that violates 80 years of precedence when President Roosevelt
signed Executive Order 8802 to eradicate race discrimination in
federal contracts.
Can you say what you--the difference between the weight of
the Federal Government being on the victim of discrimination
rather than protecting the right to discriminate?
Ms. Frye. Well, thank you for that, the question, Mr.
Chairman.
And you are absolutely right. The Executive Order 11246
that was signed by President Johnson really came out of a
legacy of recognizing that the Federal Government really had a
critical role to play in ensuring that access to employment was
open for everybody. And when you look at that history from
Roosevelt, Eisenhower, Truman, Kennedy, you know, across
Republican and Democratic presidents, they have used the power
of the Federal Government to ensure that all workers, Black,
White, all races and ethnicities, and expanded to encompass
other demographic groups, really were available, particularly
with employers who were getting federal dollars.
And, you know, I think that is the important piece here, is
that the Federal Government has role generally to enforce civil
rights laws, but particularly when you are talking about
employers, contractors, who have been given significant sums of
money to do the work of the Federal Government. There the
government has a higher obligation to make sure that the
workplace is open to everybody and it is free of
discrimination. And that is really the legacy that the OFCCP
should be standing behind.
Mr. Scott. Thank you.
And I would ask unanimous consent that my letter of
December 20, 2019 to Secretary Scalia on OFCCP's proposed rule
to allow federal contractors to broadly discriminate against
employees be entered into the record.
Chairwoman Bonamici. Without objection.
Mr. Scott. Thank you.
Ms. Goss Graves, the Department of Education's final rule
in Title IX removes the advance notice requirement that
religious schools are going to claim sex discrimination
protections conflict with their religious tenets, no longer
have to provide advance notice about which part of Title IX
they claim to be exempt from. The final rule also allows the
school to withhold that information until a discrimination
claim is filed against it.
Can you address how this policy will harm students?
Ms. Goss Graves. Thank you, Mr. Chairman.
I think that this policy will harm students because both
the Department of Education but is actually the own student
will not know and it will encourage post justifications for the
discrimination that they engage in. So students will be at the
schools attending, not understanding that they may be receiving
discrimination at some point, but schools have incentive to
make up reasons after the fact to justify discriminatory
conduct.
Mr. Scott. Thank you.
Madam Chair, by the time I get another question my time
will expire, so I will yield back. And thank you very much for
your courtesy.
Chairwoman Bonamici. Thank you, Mr. Chairman.
Next I recognize the Ranking Member of the full committee,
Mrs. Foxx from North Carolina for your five minutes for your
questions.
Mrs. Foxx. Thank you, Madam Chairman. I appreciate that.
Ms. Harris, I have long been concerned with the expectation
placed on educational institutions to investigate and
adjudicate violent crimes at all. Allegations of sexual assault
should be investigated and adjudicated solely by the criminal
justice system. Even the best campus adjudication processes are
staffed by people who do not have the professional expertise to
properly handle such cases.
In your written statement you applaud the Department's
regulation for returning the application of Title IX in these
cases to its proper place. You observe the purpose of Title IX
has historically been, and should currently be, the
preservation of educational access for victims of
discrimination.
Unfortunately, the Obama Administration, and I guess my
Democrat colleagues, have embraced an alternative view of Title
IX. You articulate in your written statement where its purpose
is to provide a second avenue for punishing criminals. Could
you explain further how the Trump Administration's regulation
properly refocuses Title IX on protecting the educational
access and turns us away from the Obama Administration's
insistence on turning Title IX into a quasi-criminal statute?
Ms. Harris. Yes, thank you, Chairwoman Foxx.
I believe that, you know, through a series of court
decisions, you know, dating back 20 or 30 years, you know,
sexual harassment, including sexual assault, are considered
forms of sex discrimination that schools have to address under
Title IX. So Title IX does require schools to have mechanisms
in place for adjudicating these cases. And I think that by
adopting important due process protections this new rule
ensures that those proceedings will be fair and will reflect,
as you say, the quasi-criminal nature of the allegations and
the seriousness of the allegations.
But I also think that by the focus on supportive measures
and by other features, such as the availability of informal
resolution and the scope of jurisdiction that the Court set
forth in the Davis case, it does restore also the focus, as you
say, to the access to education. Because that is really what
this is about. I mean Title IX is not an all-purpose law
prohibiting all sexual misconduct. You know, we have laws
prohibiting sexual misconduct and whether those laws are
properly enforced or whether more needs to be done to enforce
those laws fairly for the benefit of survivors is a different
discussion. But Title IX is a limited jurisdiction law that
relates to educational access. And so I think that by, you
know, defining it, you know, defining both the definition of
harassment and the scope of jurisdiction in accordance with the
Court's decision in Davis and by focusing on the supportive
measures that will allow a complainant, whether or not he or
she brings a formal complaint, to continue to have that
educational access, this new regulation does, as you say,
restore that focus.
Mrs. Foxx. Thank you.
Ms. Harris, some critics of the regulation have argued that
vigorous due process protections and clear standards are
unnecessary and even inappropriate in campus judicial
proceedings because the stakes are lower than they are in the
legal proceeding. It is really foreign to me how they can feel
that way.
Do you agree the stakes in campus judicial proceedings are
such that campuses can dispense with our country's traditional
understandings of basic fairness, clarity, and objectivity? Why
or why not?
Ms. Harris. No, I don't. I mean it isn't a criminal court
and no one has argued that a campus judicial system needs to
have all of the protections of a criminal court. But as
numerous federal and state courts have recognized, you know,
finding someone responsible for sexual misconduct, even on
campus, has serious and life altering effects, as it should if
the person is responsible for sexual misconduct--as it should.
But that is why we need full and fair procedures to determine
whether someone is actually responsible because, you know,
failing to recognize that the stigma of being, you know,
labeled a sex offender even on campus has those serious and
lifelong consequences, and I could tell you stories--but I have
30 seconds--of some of those consequences. You know, it fails
to take into account the seriousness of the allegation. And I
think, you know, providing these protections, which again are
not commensurate with those found in a criminal court, but
which are higher than would be found for, you know, say a
plagiarism allegation, reflects that fact that schools are by
necessity adjudicating what really are quasi-criminal
allegations.
Thank you.
Mrs. Foxx. Thank you very much.
Thank you, Madam Chairman. I yield back.
Chairwoman Bonamici. Thank you, Mrs. Foxx.
And I will now recognize myself for five minutes.
Ms. Frye, in response to the Bostock decision, your
testimony is urging the Administration to take immediate steps
to ensure that its policy positions are in line with the
Court's ruling, including reversing course on its ongoing
efforts to deny protections to LBGTQI+ individuals.
Will you please elaborate on the policy areas that need to
be modified in light of the Court's ruling?
Ms. Frye. Yes, absolutely. And I think I, along with the
co-panelists spoke to a number of them. I think, you know,
certainly you start with the memo that was--guidance issued by
DOJ to U.S. Attorneys across the country seeking to take a
different position in Title VII cases that has now been
countered by the Supreme Court. But there are many areas in
education, in housing, in terms of access to things like
domestic violence shelters, in healthcare, and certainly in
employment, a number of areas where the Administration
continues to pursue rules and guidance that would limit the
access of protections to LGBTQ workers and also folks of
religious institutions--or educational institutions and other
areas.
So I think it is a moment for that to be a full stop, and
to issue across the board to all of the agencies that they must
comply with Bostock and they must also comply with the spirit
of Bostock. I think that is the first start.
Chairwoman Bonamici. Thank you so much.
Ms. Buchert, just days after Bostock was decided, as we
heard in testimony, the Department of Health and Human Services
finalized its section 1557 rule rolling back non-discrimination
protections. And then within a matter of weeks, two Federal
Courts had enjoined portions of the rule, relying heavily on
Bostock. Specifically the case decided on September 2 in the
D.C. Circuit, Judge Boasberg highlighted in his opinion that
the rule was finalized even without pausing to consider the
Court's decision. The Department's 89 page final rule does
not--did not even acknowledge Bostock's holding.
So will you please explain how the rule is inconsistent
with Bostock?
Ms. Buchert. Yeah, absolutely. Sure. The rule is--well, the
Court enjoined it because they found it was arbitrary and
capricious to not even mention the Bostock or grapple with the
decision in any way. But it is inconsistent with federal law.
This isn't--you know, Bostock, you know, is a culmination of a
lot of work that has been done for over 20 years to establish
protections for LGBTQ or to clarify that LGBTQ people have
protections under a variety of federal laws, including Title
VII and Title IX, the Equal Credit Opportunity Act, and other
statutes. And HHS conceded itself, I guess before they knew the
decision was going to come out the way they didn't expect it
to, that Title VII and Title IX are read consistently. And
people probably know this, but Title IX is one of the four
statutes that underlies the non-discrimination provision of the
section 1557 and they should be--and even actually acknowledge
that Title VII should inform Title IX, but went ahead and
issued the decision anyway.
And we have seen already decisions that have been issued
since the Bostock decision addressing, you know, the question
of whether and how Bostock would apply. And aside from the
injunctions that have been issued in the D.C. case and the New
York case, you know, clarifying that they should have grappled
with it--they have had decisions on the merits of Title IX with
the additional threshold of addressing the question of whether
it applies to sex segregated spaces. And in the case that
Lambda Legal brought in the 11th Circuit, the 11th Circuit held
that it is discrimination under Title IX to prohibit a
transgender boy from using the boy's restroom and they cited
Bostock using the same reasoning. Similarly, in the 4th Circuit
a decision was recently issued with the same reasoning.
Chairwoman Bonamici. And I am going to put this question
out there, but I might need to get your response in writing.
So, according to a study last year by the Center for
American Progress, in this Administration, the Department of
Education's Office for Civil Rights was more than nine times
less likely to take corrective action on sexual orientation and
gender identity related complaints than under the Obama
Administration. They are investigating fewer sexual orientation
and gender identity related complaints, even though the overall
number of complaints has increased.
So after this report I led a letter with several of my
colleagues to OCR demanding information about their policies
for processing sexual orientation and gender identity related
complaints.
Unfortunately, but not surprisingly, the response I
received was inadequate. It left many of our original questions
unanswered and necessitated follow up. So without even seeing
the requested documentation we know that this Administration
has repeatedly failed to protect the civil rights of LGBTQ
students.
So I will ask you to submit for the record your response to
that question about what should the Administration be doing to
protect LGBTQ students.
Because my time is up I will ask you to submit that for the
record.
And without objection I would like to enter the following
statement and reports into the record: a letter from
Representative Raskin and myself to Secretary DeVos urging her
not to finalize the uniform administrative requirements rule
which would expand religious discrimination against students in
higher ed, and open letter from education civil rights leaders
regarding civil rights of LGBTQ students in light of the
Bostock decision, a statement from the U.S. Commission on civil
rights, calling on the Trump Administration to revise their
regulations and enforcement practices to comply with Bostock,
and, finally, a letter from the Gay, Lesbian, Straight
Education Network expressing concern about the Education
Department's ongoing attacks against LGBTQ students. I am
submitting those for the record without objection.
And next I am going to recognize, I believe, Mr. Johnson.
Is that correct? Or Mr. Cline?
Mr. Cline. Mr. Johnson please.
Chairwoman Bonamici. Mr. Johnson, you are recognized for
five minutes for your questions.
Mr. Johnson. Very good. Thank you, Madam Chair.
My questions are for Ms. Harris. And I am going to pick up
where Dr. Foxx left off, talking about this traditional basket
of protections that participants in American adjudicatory
settings so often have. And I will start with the discussion
about this live hearing. That has undergone some criticism with
concerns that maybe the potential victim, the complainant,
could be subject to intimidation or harassment. You addressed
some of this in your written testimony, I believe, but talk to
us a bit--do you think the rules by the Department of Education
struck the right balance in protecting complainants while
ensuring fairness in the process?
Ms. Harris. I do think so, yes. And, you know, I think that
the due process protections--you know, while we often talk
about due process protections in terms of what they do for the
accused, what they also do is protect the integrity of the
process as a whole. And, you know, in cases that turn on
credibility the opportunity to have a hearing, to have the
decision makers hear from both parties in person and have both
parties answer questions in real time, you know, that accrues
to the benefit of both parties. I mean there is no question
that when you are dealing with a sensitive topic like sexual
assault, any kind of proceeding is going to be difficult. And
no matter how--and any kind of proceeding could be conducted
with or without sensitivity. An investigation only could be
conducted in a sensitive or insensitive way. A hearing with
cross-examination could be conducted in a sensitive or
insensitive way. And I believe that it is incumbent upon every
institution, however they are conducting these things, to
conduct them in a sensitive way, but that can't mean
compromising fundamental fairness. And, you know, courts have
begun to consider what due process means in this context.
Prior to 2011, you know, that law had not been super well
fleshed out. We knew that public university students, in facing
suspension or expulsion, were entitled to due process, but what
that meant--you know, what that means is relatively case
specific and has to be fleshed out sort of incrementally. And
in the past years it has been fleshed out a lot and what an
increasing number of courts have held is that in this context,
when credibility is at stake, a live hearing with some sort of
opportunity for cross-examination is in fact a critical element
of due process.
Mr. Johnson. And, Ms. Harris, that makes sense to me. And,
you know, in a past life I was a fact finder, a public
utilities commissioner. And I want to make it clear I am not in
any way comparing that kind of contested case environment to
one where sexual harassment is at the heart of it. I can't
imagine the trauma that a victim experiences.
But it does seem to me that when you talk about serving the
process and making sure that the right facts come to light, as
a fact finder I routinely would note that I think the process
was better served in a real time examination of the facts and
that all parties I think were better able to help the fact
finder identify and illuminate these key issues.
So what you are saying makes sense to me.
And we have talked about protections for--or due process as
relates to the accused, but there are also some additional
protections, as I understand it, for the complainant. Could you
talk a little bit about those?
Ms. Harris. Well, sure. So one protection relates to the
use of medical records and provides that medical records can't
be used in a proceeding without a party's explicit consent. And
there are times--I mean there have been cases where medical
records might be central to a case. You know, questions evolved
about, you know, how a medication might have interacted, for
example, with alcohol in a way that the other party may not
have been able to recognize. And so, you know, this is
something that could in some ways harm the fact finding process
because the medical information may be relevant, but the
regulations provide that, you know, without a party's consent
that type of sensitive medical information can't be disclosed.
I also truly believe that the option for informal
resolution--which was something that the previous
Administration had precluded in cases involving any physical
misconduct--I truly believe that, you know, so long as
universities, you know, follow the regulation's instruction
that they may only be used with the consent of both parties,
you know, without any type of coercion, that gives control back
to victims, you know, who may not want themselves to go through
a whole full process, but who may want some sort of reckoning
or accounting for what has happened.
Mr. Johnson. Thanks, Ms. Harris.
Thanks, Madam Chairman. And I yield back.
Chairwoman Bonamici. Thank you, Mr. Johnson.
Next I recognize Mr. Grijalva. Is Mr. Grijalva with us? I
don't believe so. Ms. Fudge? Nope. Dr. Schrier? It is hard
visually because I can't--okay, I don't see Dr. Schrier. Okay,
I know Ms. Hayes is here. I recognize Ms. Hayes for five
minutes for your questions.
Mrs. Hayes. Thank you, Chairwoman Bonamici. Can you hear
me?
Chairwoman Bonamici. Yes, we can hear you.
Mrs. Hayes. Okay, thank you. And thank you to all of the
witnesses who are here today.
As has been mentioned by this committee, Connecticut is
currently fighting to protect our students from the Department
of Education with the express purpose of protecting, uplifting,
and educating all students. Despite the Supreme Court's hearing
that federal civil rights laws prohibiting discrimination on
the basis of sex protects transgender individuals, this
Department of Education is threatening to withhold and redirect
millions of dollars in magnet school assistance program funds
because Connecticut school districts are abiding by a state
policy of the CIAC to allow transgender youth to participate in
accordance with their gender identity. This is congruent to the
Supreme Court's June opinion in Bostock versus Clayton County.
These grants are specifically designed to assist in
desegregation, promotion of diversity, and equitable education
for all students in public schools. This is particularly
devastating in Connecticut, which remains one of the most
educationally segregated states in the country.
Before I--I just want to say there is a whole lot about the
journey of transgender youth that I don't understand. I don't
understand, you know, gender identity and expression and how it
presents itself at different ages, but what I do understand is
discrimination and the fact that these are somebody's children.
And it is our job to protect these children. And federal
funding should not be contingent upon that protection.
So my question for you, Ms. Graves, as an educator I came
to this committee from the classroom and I can only imagine
what teachers are dealing with as they have to uphold and
defend some of these decisions.
Ms. Graves, last week OCR refused to recognize that the
Bostock decision has any bearing on Title IX and the rights of
students. Can you provide some context for what legal ground,
if any, this Administration can rely on to support such a
decision?
Ms. Goss Graves. I just want to begin by saying I also am
deeply worried about our youngest students and the message that
this Administration is sending to them and that some of their
schools in turn will send to them.
You know, it has been 3 months since we had the decision in
Bostock and in that time we have already had a 4th Circuit
decision be clear that ban on sex discrimination includes
gender identity discrimination. So what you would expect the
Department of Education to be doing--and frankly we have joined
with members of the civil rights community, asked the
Department of Justice to do this across the board--is to be
clear that the Bostock decision application in terms of the
meaning against sex discrimination has important consequences
for education, but also for housing and for healthcare.
Unfortunately, the Department of Education is doing the
opposite. It is not only not clarifying that ban on sex
discrimination includes gender identity and that transgender
students are protected, is taking this extraordinary step of
continuing to go after these entities in Connecticut for having
inclusive policies for transgender students. So it is an
outrage and totally turning Title IX on its head.
Mrs. Hayes. Thank you. As you mentioned, I am deeply
worried about this enforcement decision and I know that what
Connecticut is experiencing will ripple out into the rest of
the country. And the fact that federal funds are now being
contingent upon allowing students to participate or not to
participate is concerning for me, to say the least. And I think
it is a precursor to what we can expect. I don't think any
child or any parent would open themselves up to this type of
scrutiny for a sports medal, to say the least.
Can you just provide just some context, has this idea of
the immediate revocation of funding been--I feel like
Connecticut is being attacked disproportionately. Have similar
cases been decided in the same way?
Ms. Goss Graves. I have to be really clear on this point,
it is a highly unusual step to actually take measures to remove
federal funds, in part because the Department has so many other
tools to use that you don't see it. But so to have this very
rare--and there may have been one other example over the last
50 years where this has happened. It is unusual.
Mrs. Hayes. Thank you.
Madam Chair, I yield back.
Chairwoman Bonamici. Thank you, Ms. Hayes.
Next I recognize Ranking Member Cline for five minutes for
your questions.
Mr. Cline. Thank you, Madam Chair.
Ms. Harris, as you noted, there has been a lot of criticism
leveled at the Department for how it chose to define sexual
harassment under the regulations. But in your written statement
you noted that the Supreme Court opinion that established that
definition was authored by Justice Sandra Day O'Connor and
joined by Justices Ginsberg, Souter, Stevens, and Breyer. Most
have not read that opinion. Could you explain a little bit more
about the Court's rationale for establishing that standard and
why that standard is still appropriate?
Ms. Harris. Yeah. Thank you.
So in the Davis decision, you know, the Court had to
balance school's obligation to prevent harassment with school's
obligation to uphold, you know, particularly in the public
school setting, the First Amendment rights of students. And it
also had to recognize--you know, the opinion exclusively
recognizes that, you know, school, particularly in the K-12
setting is a place where students are learning how to interact
with one another and are going to, you know, insult and offend
one another and that you can't--you know, to have a functional,
you know, system, it can't be that every act of name calling
among children in school rises to the level of harassment.
So when the Court, you know, crafted this severe,
pervasive, and objectively offensive standard, what they were
really focused on is access to education. It is not just a
question of, you know, has something happened that has hurt or
offended someone on the basis of sex, it is has someone's
access to education been limited or denied on the basis of sex.
And that is really where that standard comes from.
And, you know, it is interesting, as you note, that the
majority opinion was authored by Justice O'Connor and joined by
the Court's liberal majority. And Justice Kennedy actually
wrote a really strong dissent in which he expressed concerns,
you know, that even the Davis standard was insufficiently
protective of free speech and was going to sort of going to
open the floodgates. So in a way it is ironic that the Davis
decision has come to be seen as this, you know, sort of extreme
definition when really at the time that it was crafted it was
viewed as, you know, the appropriate balance between the need
to prevent harassment in schools and ensure that educational
access is not denied on the basis of sex or based on sex
discrimination with the need to, you know, protect free speech
and to allow students, you know, to learn sort of the rules of
engagement, so to speak, particularly in the K-12 context.
Mr. Cline. You also addressed the criticisms leveled at the
jurisdictional limits to campus adjudication of sexual
harassment allegations under the regulation and you point out
that the Supreme Court said that an institution's liability
under Title IX is dependent on the degree of the institution's
control over both the harasser and the environment in which the
harassment occurs. In other words, a school becomes liable or
potentially liable when it exercises some control over both the
accused and the location where the harassment occurs.
Could you discuss in more detail how the Trump
Administration's regulations strikes that balance and why that
is a better approach than the previous Administration's
guidance?
Ms. Harris. Yeah. I mean so it is interesting, in the Davis
decision, although the decision, as you say, related to
liability, when talking about the jurisdictional limitation,
the Court actually referred to the language of Title IX itself,
of the statute itself, and said that, you know, the statute by
its plain language cabins a range of misconduct that can be
addressed.
Because, again, you know, we have laws in this country
prohibiting sexual misconduct. You know, if a student commits
sexual misconduct or commits rape off campus, that student has
violated the law. Now, again, it is a whole separate
conversation about how those laws are enforced and whether they
are being well enforced. But Title IX is a statute about
educational access and, as such, you know, the Court held that
the plain language of the statute requires this nexus to the
institutions, such that the institution at some point exercises
control both over the harasser and over the environment in
which the harassment occurs. And, you know, in this instance,
the Administration is really just going back to what the Court
said about the statute's plain language. I would argue that it
is not really in the Department's authority to do anything
else.
Mr. Cline. Thank you. And in the little time I have left,
you noted that it was the last Administration that departed
from the Supreme Court's precedent and long standing Department
guidance on the definition of sexual harassment and that the
Obama Administration's definition was extraordinarily broad and
at odds with the First Amendment. Can you explain a little more
about why you would say that?
Ms. Harris. Well, yes. Any unwelcome conduct of a sexual
nature, including verbal conduct, which for the definition
includes a lot of--includes in addition to actual harassment, a
lot of speech protected by the First Amendment.
Mr. Cline. Thank you.
I yield back.
Chairwoman Bonamici. Thank you, Ranking Member Cline.
And next I recognize Representative Trone for five minutes
for your questions.
Mr. Trone. Okay. Thank you very much, Madam Chairman, for
holding this hearing.
Let us start with Mrs. Frye. EEOC recently issued a
proposed rule to increase employer participation and
conciliation efforts. And in your view does this strengthen,
weaken EEOC's enforcement authorities? Who are the winners and
losers in this rule making?
Ms. Frye. Well, it is a great question. You know, there is
some history behind this rule and this rule making. And part of
that history is that while it is important for conciliation to
happen and to be able to try to resolve complaints before they
go to litigation. The rules previously, many employees were
trying to essentially delay the ability of the EEOC to actually
move forward with the case. And they would argue that they
hadn't actually done all the steps for conciliation. And the
issue was litigated in the Supreme Court and the Supreme Court
said in a decision Mach Mining v. EEOC that the EEOC was not
bound by a specific rubric that was required to conciliate and
that the rules were much more deferential to what the EEOC--as
long as they were operating in good faith.
And so the concern here is that this rule making could
resurrect this notion that there has to be a specific set of
procedures that the EEOC goes through in order to be able to
litigate. And it is really a delay tactic that ultimately hurts
litigants and particularly workers who are in need of
protection. That is the concern.
Mr. Trone. Exactly. Let us jump, Ms. Frye, to salary
transparency. It is an interesting area. Can you help us to
identify, you know, where these--looking at where barriers
exist and at the same time we don't want to eliminate merit, at
the same time. So your testimony discussed the model of the
United Kingdom requiring large employees, 250 or up, to
publicly disclosed gender pay gaps. Can you explain how this
system would work--and you think it could be successfully
adopted in the U.S.? And how would you see it implemented here,
but still not to take away merit
Ms. Frye. Well, absolutely. I think, you know, what we have
learned in the UK is that for employers with 250 or more
employees they are now required to report their pay gap. And
they actually do it by, I think it quartiles. And it is a way
of giving other people better information, employees
themselves, so they can make good decisions. And it also
incentivizes employers perhaps to look closely at their
practices and take corrective measures. And I do think we ought
to be thinking about whether or not a rubric like that would
work here and to complement enforcement that is already being
done and the work that employers do on their own to look at
their pay practices. It could be a legislative measure that
Congress pursues or something collaborative with the
Department. But I definitely think it is worth looking at.
Mr. Trone. Okay, great.
One of the provisions of the Fair Pay and Safe Workplaces
Executive Order, which Trump rescinded, you know, prohibiting
contractors requiring employees to sign, you know, pre-dispute
arbitration agreements for discrimination claims and torts for
sexual harassment and assault. Again, who are the winners and
loser in this one?
Ms. Frye. Well, you know, the purpose of that is--you know,
more than 50 million workers are covered by arbitration
agreements and what that does is that limits their ability to
vindicate their rights under the laws that many of us are
familiar with like Title VII. And so the Fair Pay and Safe
Workplaces Executive Order was really designed to limit the
situations where that occurs so that workers who are, you know,
already in a challenging situation in terms of bringing cases
are not unfairly hindered in their ability to vindicate their
rights under the law.
That is why that provision was so important. And it
basically said that you can't require people before dispute
arises to say that they are going to take their case somewhere
else.
Mr. Trone. And so, once again, our workers got the short
end of the stick?
Ms. Frye. Yes, sir.
Mr. Trone. Thank you, ma'am.
I yield back.
Chairwoman Bonamici. Thank you, Mr. Trone.
Mr. Cline, do you have other members present? Mr. Thompson
perhaps?
Mr. Cline. It does not appear that Mr. Thompson is here,
so--
Chairwoman Bonamici. I recognize Ms. Lee for five minutes
for your questions.
Mrs. Lee. Thank you, Madam Chair, and thanks to all of our
witnesses for joining us today to discuss these very important
issues.
First, I want to acknowledge that there has been a lot of
jargon, legal jargon and acronyms thrown around today, but to
be frank, quite honestly, we are speaking about one plain and
simple principle, and that is equality. And we have heard today
about many ways in which Secretary DeVos and this
Administration have worked to weaken, rollback, remove any key
civil rights protections, particularly for LGBTQ individuals
and women. And as someone who has spent my career working among
our most vulnerable populations in Nevada's public schools, I
would like to first focus on how these actions are hurting
students, particularly students that are at high risk of
falling behind or dropping out or even worse.
Ms. Goss Graves, as we discussed today, in 2017 Betsy DeVos
rescinded key guidance that secured the rights of transgender
students, leaving transgender students now more vulnerable to
ongoing discrimination at school.
Can you speak to how this rescission of the guidance does
just that?
Ms. Goss Graves. Well, the first thing to know is that
transgender students are more likely to experience
discrimination and harassment in school, and study after study
has shown that. And that the harassment that they experience
that when they do go forward they are less likely to be
believed or told to change who they are rather than having the
schools enforce their rules. So we are already starting out at
a place that is worrisome.
But the combination of the message that the Department of
Education is sending, that they don't really have to do what
they need to do with the Bostock decision, plus the change in
the Title IX sexual harassment and violence rules, could have
devastating effects, especially for all LGBTQ students, but
transgender students in particular.
Mrs. Lee. Thank you. I would also like to break down the
Bostock Supreme Court decision that we have heard a lot about
today and how that decision contrasts with this
Administration's policies regarding gender discrimination.
As you all know, this past June the Supreme Court confirmed
that the Civil Rights Act protects transgender workers from
discrimination because of sex, much in the same way that Title
IX has been interpreted to protect transgender students. One
would logically conclude that this decision settles the matter
regarding the inclusion of gay and transgender individuals
protected under anti-discrimination laws that afford
protections based upon sex. And this decision is in stark
contrast to the Administration's position that Title VII of the
Civil Rights Act does not protect discrimination based against
sexual preference and gender identity.
Ms. Frye, in response to the Bostock decision you have
urged this Administration to ``take immediate steps to ensure
that its policy positions are aligned with the Court's ruling,
including reversing course on its ongoing efforts to deny
protections to LGBTQI+ individuals''. What are some of the
policy areas that need to be modified in light of the Court's
rulings?
Ms. Frye. Well, I think, you know, where we start is making
sure that the Administration is clear across all the agencies,
that the Bostock decision does indeed say that sex
discrimination should be read broadly to encompass the rights
of LGBTQI workers. And really that then sends the message that
from education to housing to employment, all of these areas
that they continue to push these types of rules, they need to
fundamentally reverse course.
It also means litigation. You know, we didn't mention that
they continue to intervene in cases where they have advanced
arguments that now the Court has said are not valid.
So I think it is really a full stop on all of these efforts
and to make clear that across the board they to rethink how
they are interpreting sex discrimination.
Mrs. Lee. Thank you so much. And, again, I just want to
make sure that we continue to focus that the key issue here is
not lost in the legal jargon. Simply put, this is about
equality for every student, worker, parent, and child.
And so thank you, Chairwoman, for having this important
conversation, and all the witnesses.
And I yield .
Chairwoman Bonamici. Thank you, Ms. Lee.
I believe we are--is there any other Member present who is
not on the subcommittee? It appears not. Well, I want to remind
my colleagues that pursuant to committee practice, materials
for submission to the hearing record must be submitted to the
Committee Clerk within 14 days following the last day of the
hearing, so by close of business on September 24, 2020,
preferably in Microsoft Word format. I do know there will be
some additional questions for the record, including asking for
a follow up on the interpretation of the Davis case. I know
that one will be coming, as well as others. The materials
submitted must address the subject matter of the hearing. Only
a Member of the subcommittee or an invited witness may submit
materials for inclusion in the hearing record. Documents are
limited to 50 pages each. Documents longer than 50 pages will
be incorporated in the record via an internet link that you
must provide to the Committee Clerk within the required time
frame, but please recognize that years from now the link may no
longer work.
Pursuant to House Resolution 965, and accompanying
regulations, items for the record should be submitted
electronically by emailing submissions to
[email protected]. Remember, offices are
encouraged to submit materials to the inbox before the hearing
or during the hearing at the time the member makes the request.
The record will remain open for 14 days per committee practice
for additional submissions.
So, again, I want to thank the witnesses for their
participation today. It has been very informative. Members of
the subcommittee may have additional questions for you. I know
that there will be some particularly about the Davis
interpretation. We ask the witnesses, please response to these
questions in writing. The hearing record will be held open for
14 days to receive those responses and I remind my colleagues
that pursuant to committee practice, witness questions for the
hearing record must be submitted to the Majority Committee
Staff or Committee Clerk within 7 days. The questions submitted
must address the subject matter of the hearing.
Now, I recognize the distinguished Ranking Member, Mr.
Cline, for his closing statement.
Mr. Cline. Thank you, Madam Chair. I appreciate you calling
this hearing. I want to thank the witnesses for offering their
expertise today. I do want to reiterate that is a wide ranging
hearing and it is unfortunate we only had one witness to cover
such a broad--she ably covered all the topics, but would have
like to have had a little bit more opportunity to have more
witnesses.
On the issue of the Department's regulation with respect to
how schools adjudicate sexual harassment claims under Title IX,
I want to reiterate just a few points.
First, on a really sensitive and potentially divisive
issue, it is noteworthy that individuals across the spectrum
have supported the Trump Administration's actions. And that is
pretty unprecedented in the current climate. And, second, I
want to highlight the earlier discussion between Ranking Member
Foxx and Ms. Harris. It seems the core of the disagreement is a
difference of opinion on the purpose of Title IX. Nobody is
arguing that perpetrators of sexual violence should not be
punished. I am a former prosecutor and I understand that
criminals should be punished to the full extent of the law. But
Title IX exists to protect students' access to the educational
environment, and I applaud the Trump Administration for
restoring the purpose of Title IX through this regulation. It
offers clarity based on court precedent and protects the rights
of students, it protects the rights of respondents--yes,
consistent with the emerging case law.
But it also protects the rights of survivors, and that is
critical. One thing we learned today is that survivors of
sexual assault were poorly served by the last Administration's
mess of the Title IX in this space. I applaud the Trump
Administration for correcting those errors.
Madam Chair, thanks again for holding this hearing. I am
honored to be a member of the subcommittee and I look forward
to working with you in the future and I yield back.
Chairwoman Bonamici. Thank you, Ranking Member Cline.
And I now recognize myself for the purpose of making my
closing statement.
I want to thank our witnesses for sharing your expertise
throughout the hearing. Today we examined the full scale on
effects of the Trump Administration's attacks on gender based
civil rights. We discussed--and it is a broad issue and a broad
topic, but very important--we discussed how the Administration
has undermined protections for transgender students and sexual
assault survivors. We reviewed how the Administration has
stripped civil rights protections from LGBTQ workers and halted
our progress in addressing pay disparities based on gender,
race, and ethnicity.
We discussed how the President has attempted to eliminate
patient protections for women and LGBTQ community in the middle
of a global pandemic.
These issues are not merely policy disputes. These civil
rights protections are about preserving dignity and securing
the inherent inalienable rights of every American. When our
government allows, and in fact even endorses, discrimination
against certain individuals it sends a message about their
value in our society. It says you are not worthy of a quality
education, a good paying job, or vital healthcare services
because of who you are. That is unacceptable.
We must be a Nation where everyone, no matter what they
look like, who they are, or who they love, can live free from
discrimination. This principle has been the foundation of our
Nation's civil rights laws for decades.
I look forward to working with members of this committee to
repair the damage done over the last 4 years and to create a
more inclusive Nation that truly achieves liberty and justice
for all.
Thank you again to our witnesses for being here and to all
the members who participated.
If there is no further business, without objection, the
subcommittee stands adjourned.
[Additional submissions by Chairwoman Bonamici follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 1:59 p.m., the subcommittee was adjourned.]
[all]