Hawaii is about to pass a horrible new law that will subject ONLY sex-based civil rights harms to different and worse treatment compared to harms based on race, national origin, etc.
The proposal is roughly a state law version of the horribly discriminatory Campus SaVE Act, which was passed by Congress in 2013. I filed a lawsuit in DC federal court to stop SaVE from being enforced by any OCR or school on the grounds that it violates women’s civil rights including Title IX and Title IV to subject sex-based games to worse treatment. Indeed, Title IX itself forbids different treatment based on sex with specific regard to student conduct and sanctions. The judge ruled in 2014 that SaVE can have “no effect” on Title IX because it amended the Clery Act and Congress cannot WEAKEN Title IX by amending a different if related law.
Notwithstanding the court’s ruling in my case, Betsy DeVos issues new rules in September 2017 mandating that schools comply with the Campus SaVE Act. I then sued her in Mass. federal court in October 2017 arguing that she has no authority as an agency head to order schools to obey a law that the federal court has said can NOT be used to WEAKEN Title IX.
Many months later, a different lawsuit was filed against DeVos in California federal court. This lawsuit asks the court to ALLOW schools to subject women and sex-based harms to different and worse treatment compared to race and national origin. The lawsuit nowhere objects to DeVos mandating that schools comply with the discriminatory Campus SaVE Act. This suit was filed by a group called survjustice, victims rights law center, and national women’s law center. All three forums do not support women’s equality, the ERA, or equal treatment of Title IX and sex, on par with Title VI and race and national origin, even though equal treatment of civil rights under Title IX and Title VI is mandatory.
How does this relate to Hawaii?
When the judge ruled in my case that SaVE can have “no effect” on Title IX, anti-equality lobbyists started filing bills at the state level to give states permission to subject sex-based harms to second-class treatment.
Of course, the bills come with a lot of funding, to keep advocates quiet about the discrimination. But what kind of advocate would support discrimination and second class treatment in exchange for money? Who would sell out women’s equality for cash?
It’s possible women’s groups in Hawaii don’t understand how dangerous the proposed law is, but they should figure it out sooner than later because the bill appears to be on the fast track.
Similar bills have been filed in other states – including Massachusetts – and they are getting favorable press because there is significant higher education money behind these bills.
Schools should not be training grounds where girls and women leave to accept subjugation as normal. Schools should be places that teach and practice full equality for all. Civil rights equality is especially important because the magic of civil rights laws is that they create legal injury in the collective. This means when a single act of sexual assault happens, like a single act of racial assault, it is not an individual or private problem, it is a community problem subject to community attention and redress. When all feel injured, all become personally invested in solutions intolerant of discriminatory harm. Singling out sex-based harms for non-civil rights redress, and different and worse treatment compared to other classes of people, denies females the enormous value of having their suffering understood as an injury to, and the business of, the collective.
Professor of sexual violence law
Wendy Murphy is adjunct professor of sexual violence law at New England Law|Boston where she has taught for fifteen years. An impact litigator whose work in state and federal courts around the country has changed the law to improve protections for women’s and children’s constitutional rights, she developed and directs several projects in conjunction with the school’s Center for Law and Social Responsibility.