Speaking of Women's Rights

Wednesday, March 7, 2018

New protections for LGBTQ parents in Washington!

By David Ward

For decades, Legal Voice has worked to ensure that our law recognizes families in all forms—including families formed by LGBTQ couples. We’re happy to report that yesterday, Washington Governor Jay Inslee signed into law Senate Bill 6037, which greatly improves the Washington law about how people are legally recognized as parents!  The new law takes effect on January 1, 2019.

Here are some of the key provisions of this update to the Uniform Parentage Act:
  • It allows people who are presumed to be a child’s parent under Washington law (including married same-sex couples who have children) or who are intended parents through the use of assisted reproduction to sign what is called a “voluntary acknowledgement of parentage.” Under federal law, we believe every state in the country should be required to recognize a voluntary acknowledgement of parentage as proof that a person is a child’s legal parent. This provides a way for LGBTQ parents to help protect their rights in every state in the country, without having to go to court. However, parents are still advised to consult with family law lawyers experienced in LGBTQ rights in order to decide what steps to take to ensure that their parental rights are protected.
  • It establishes clearer and simpler rules for courts to issue judgments that recognize a person as a legal parent of a child. Some LGBTQ parents in Washington have sought such “parentage judgments” in order to obtain a court order that recognizes them as a legal parent of a child.  This bill should make that process clearer for parents who may wish to pursue this option.
  • It creates a regulated system that allows compensated surrogacy in Washington State, while protecting the health, well-being, and autonomy of women acting as surrogates. Legal Voice worked with the bill’s sponsor, Sen. Jamie Pedersen, to ensure that the bill provides strong protections for women acting as surrogates—protections that will help balance the power between intended parents and surrogates, ensuring that such arrangements are entered into knowingly, with care, and subject to legal oversight.
  • It preserves the protections we gained last year that provide a way for people who become pregnant as a result of rape to prevent the rapist from being recognized as a parent of the child.

In the coming months, Legal Voice’s Self Help Committee will work to develop materials that explain the changes made by this law and what they mean for you.

David Ward is Senior Attorney at Legal Voice, where his work focuses on gender violence, family law, and LGBT rights.

Thursday, September 7, 2017

This Administration is Moving in the Wrong Direction on Campus Sexual Assault

By Olivia Ortiz

Title IX guarantees students an education free from sex discrimination. In 2011, the federal Department of Education clarified the application of this law in its Dear Colleague Letter, requiring schools to “take immediate action to eliminate . . .harassment [including sexual violence], prevent its recurrence, and address its effects.” This document provides crucial guidance as to what Title IX means in practice—that is, what sex-equal access to education actually looks like, for students, at schools.

Today, with Education Secretary Betsy DeVos’s announcement that the Administration intends to make new rules rather than maintain the Dear Colleague Letter’s guidance, the principles and protections of Title IX are under threat. With no sexual assault survivors present and with very little input from people whose right to be free of gender discrimination in education is at risk, DeVos claimed that the current guidance does not adequately protect the rights of accused students.

I offer my experience as a student to illustrate the critical need for the principles in the Obama Administration’s guidance.

As a student at The University of Chicago, I first found myself reviewing my school’s sexual misconduct policy in 2012. While the policy was purported to have been written for students, it was confusing and internally inconsistent. In talks with the administration, even seasoned administrators failed to state what these policies actually were. A simple question persisted: what were our rights?

The Dear Colleague Letter concretely illustrates what the law affords by requiring policies and procedures that are equitable to all parties involved. An academic environment free from sex discrimination means equal access to: engaging in class, accessing campus resources, and participating in extracurricular activities, all without injury resulting from sexual violence. When such injuries occur, schools must address the violence promptly, with clear policies and effective remedies. It also prescribes basic measures that allow students to continue their education after experiencing violence. After trauma, access to counseling, increased security measures, and academic accommodations are often the difference between students thriving academically and dropping out. Finally, the Dear Colleague Letter requires that schools take preventative action in the form of trainings for faculty, staff, and students, so that all members of the campus community understand what their rights and responsibilities are.

The Dear Colleague Letter transforms a law into a concrete tool that students can wield for justice. Equipped with this guidance, my classmates at the University of Chicago and I demanded clear, centralized, and streamlined policies. These efforts have resulted in two policy overhauls and a user-accessible university website that actually communicates to students their rights at the university, civil, and federal levels. We demanded that our professors and classmates receive comprehensive training as to how to prevent and address sexual violence, resulting in mandatory Title IX training for the entire community. We showed survivors that they deserve more from their university than an incomprehensible webpage and illusory rights.

Title IX states that “[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination under any education program or activity . . . .” However, sex inequality in education does not live in statutory language alone. It walks with survivors as they pass their assailants on the quad; it sleeps with them in their dorms as their perpetrators lie rooms away; it sits with them in a dean’s office in mediations with their abusers. The Dear Colleague Letter gives voice to the violent realities of the very discrimination the statute prohibits.

But the Trump Administration is wrong if it believes today’s announcement will end the effort to prevent and address campus sexual assault. Title IX is still the law of the land and the Dear Colleague Letter only clarified what the law already provides. Survivors and advocates for their rights will not stop demanding the full protections of a law designed to make education free from discrimination, including gender-based violence.

Olivia Ortiz is a Legal Voice volunteer, currently serving as a member of the Campus Sexual Assault Workgroup. Olivia has been a leader on the Workgroup's soon-to-be-released project: a "Know Your Rights" resource for survivors of sexual assault on Washington State campuses.

Photo courtesy of Gage Skidmore

Wednesday, August 23, 2017

Leveling the Playing Field Beyond the Gender Binary: How Title IX Must Continue to Evolve

Jillian Bearden, pro cyclist and transgender woman. Photo: Hyoung Chang, The Denver Post
By Lulu Klebanoff

Title IX was signed into law in 1972, during a time of political and social upheaval, as the US felt the effects of the civil rights, anti-Vietnam War, gay rights, and second-wave feminist movements. It validated decades of women’s rights activism and secured improved education for the women of the future. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under an educational program or activity receiving Federal financial assistance.”

Forty-five years have passed, and we are yet again in a time of political and social upheaval, with the Black Lives Matter, reproductive justice, and trans rights movements coming into conflict with a federal government that is increasingly hostile to social justice. It is a fitting time to re-examine Title IX—how it has improved education for people of all genders, and where it still fails.

Title IX requires educational institutions that receive any federal funding (i.e. public elementary, middle, and high schools, and nearly all colleges and universities) to provide equal access to all educational programs for all people, regardless of gender. Title IX allows women to earn degrees in medicine or law at graduate schools that previously wouldn’t have admitted them, to study disciplines like math and science that were previously considered beyond their abilities, and to seek remedies from their schools for the previously unspeakable harms of sexual harassment and assault experienced on campus. And, perhaps most notably, it allows them to play on school sports teams, something almost unheard of before Title IX was passed.

Title IX requires that schools provide equal athletic participation opportunities, equal athletic scholarships, and equal access to resources such as locker rooms, equipment, coaching, etc. These requirements are necessary to provide women with access to the benefits of sports that they were previously locked out of: opportunities to exercise, build strong friendships, practice teamwork and leadership, and compete. And participation in sports has benefits off the field as well. Studies show that athletes are less stressed, are more likely to graduate, have higher self-esteem, and are less likely to smoke or use drugs. So it is a great victory for women that Title IX caused girls’ participation in high school athletics to increase tenfold and women’s participation in college athletics to increase sixfold between 1972 and 2012.

But Title IX’s work is not yet done. 80-90% of all educational institutions do not meet Title IX’s athletics standards (though they can still retain federal funding by claiming they demonstrate a history and continuing practice of expanding opportunities for women, or that they are effectively accommodating women’s interests and abilities). And, according to the National Women’s Law Center, 1.3 million fewer girls play sports in high school than boys, and only 28% of the money spent on athletics at NCAA schools is spent on women’s athletics. 

The situation for trans students is even more dire.

The fight for gender equality has expanded since 1972 to include transgender and nonbinary people, but Title IX has not expanded to protect trans students. Many argue that Title IX should apply to trans students, because sex includes gender identity, and thus discrimination against trans people is discrimination “on the basis of sex.” Several cases regarding Title VII—which focuses on employment rather than education—have set a precedent for this concept. In one such case, the Justice Department refused to hire Mia Macy, a trans woman, specifically because she was transgender. The Equal Employment Opportunity Commission ruled in her favor, declaring that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on… sex.’” It seems logical this would apply to education as well, but no Title IX cases have yet set such a precedent. This means Title IX currently does little for the many trans students who are excluded from high school and college athletics.

Young trans men and women are often kept from playing on teams that match their gender identity. Some are barred from competing by coaches and administrators, who act as unregulated gatekeepers to the world of sports. Some, like Mack Beggs, a trans male wrestler who won the 2017 Texas state championship, are forced to compete on teams of their assigned gender by state athletic associations. And some are kept out of competition for at least a year (or sometimes entirely) by the NCAA’s policy for trans women that requires a level of medical transition difficult for many to achieve. And young nonbinary athletes are ignored by policies entirely, forcing them to make a difficult choice between competing on a gendered team and not playing at all.

Trans Americans face no shortage of serious issues, such as alarming rates of physical and sexual assaultsystematic criminalization, and dehumanization by “bathroom bills” and military bans. But the way we treat trans people in sports is an especially powerful litmus test for not only the status of trans rights, but also the status of gender as a whole in the US. Policies like the International Olympic Committee’s and similar US state policies, that require extensive legal and medical transition for trans women to compete in women’s athletics, reveal an underlying assumption that “male” bodies are inherently superior to “female” bodies. While such physical differences do exist on average (the average cis man is stronger and less flexible than the average cis woman, advantaging men in sports like sprinting and women in sports like gymnastics), this is a very limited view of human biology and of what factors contribute to athletic ability.

Biological sex is less binary than most people believe. Erin Buzuvis, a professor at the New England University School of Law, describes sex as a continuum, rather than a binary, in her paper “Caster Semenya and the Myth of a Level Playing Field.” Even ignoring gender identity—which may actually be inappropriate, as scientific study increasingly suggests that gender identity is biologically ingrained, and thus a part of biological sex—sex is a combination of chromosomes, hormones, and genitalia. All of these, especially hormone levels, vary widely—even chromosomes can be XO, XXY, XYY, XXX, or differ on a cell-by-cell basis—and can match up differently in intersex people. (Like people with Androgen Insensitivity Syndrome who have XY chromosomes but lower testosterone levels than the average woman, and thus externally appear female, or like Dutee Chand.) Professor Buzuvis further points out that segregating people by sex doesn’t control for other athletic advantages of birth, like height, longer or shorter limbs, or extensive access to coaching from a young age.

So while dividing sports by sex does make sense as a strategy to maintain a level playing field, we must recognize that it is an imperfect and arbitrary system. Once we recognize this, it becomes clear that enforcing the gender binary in high school and collegiate athletics doesn’t truly promote “fairness,” and instead just excludes trans students from the physical, emotional, and educational benefits of sports. 

This is clear to the Washington Interscholastic Athletic Association, whose policy on trans athletes is one of the most progressive in the country. All athletic organizations in Washington State are required by the WIAA to allow every student athlete to compete on a team consistent with their gender identity, and to follow a non-invasive, psychologically based investigation process should the need to verify a student’s asserted gender identity arise. Establishing similar policies in other states would be a vital step towards extending Title IX to people of all genders and truly eliminating gender as a factor in education.

Lulu Klebanoff is a legal intern at Legal Voice, and a rising sophomore at Yale University. In her free time she loves doing improv, writing, petting dogs, and slowly dismantling the heteropatriarchy. She once broke her toe by dropping a 25 pound weight on it, and subsequently stopped weightlifting.

Wednesday, July 26, 2017

Here’s the Sex Ed Lesson the Trump Administration Missed in Class

By Nina Dutta

Since the implementation of the Affordable Care Act, you may have heard some remarkable words from your pharmacist or healthcare provider: “There’s no co-pay.”

That’s because the ACA included a mandate for most insurance companies to fully cover FDA-approved contraception – regardless of method or price. While there is a religious exemption for insurance provided by churches and closely-held companies, millions of insured women in the U.S. have been getting their contraception without a co-pay for several years now. In 2013 alone, women saved more than $1.4 billion dollars on out-of-pocket costs because of the mandate. They’ve also taken advantage of the coverage by seeking out pricier but more effective methods like IUDs.

Now, however, the Trump Administration is poised to remove this coverage. A document leaked on May 31st described a plan to expand the religious exemption so that it applies to any non-governmental employer that wants to opt out of covering contraception due to religious or moral opposition – meaning that nearly any employer could choose to drop coverage. (And all of this is assuming the ACA isn’t repealed outright, anyway.)

No surprise there. Women predicted a rollback on their contraceptive access and abortion rights after the election and have been seeking long-acting reversible contraception (LARC) methods – many of which can outlast a presidency - in record numbers.

What is surprising is that the Administration justified expanding the exemption by questioning whether contraception prevents unintended pregnancies at all.

Yeah, you read that right.

Apparently, key members of the Administration missed that day of class where many of us learned that contraception works. And the advice from their doctors. Not to mention the last 57 years of women’s progress.

So let’s break it down for them:

Alternative Fact: Increased usage of prescription contraception hasn’t decreased the rates of unintended pregnancy – so we shouldn’t require insurers to cover contraception.

Reality: Unsurprisingly, contraception does what it’s supposed to, and its increased use has been repeatedly linked to decreases in unintended pregnancy rates since the birth control pill was invented. In fact, a recent increase in the use of prescription contraception between 2008 and 2012 was associated with the lowest unintended pregnancy rate in 30 years.

Alternative Fact: Increasing access to prescription contraception doesn’t mean that women actually use contraception more – so it’s fine to reduce access.

Reality: Actually, a wide body of research shows that women whose insurance covers contraception are more likely to use prescription contraception, while women without that coverage rely more on less effective methods like condoms and are more likely to have unintended pregnancies.

Alternative Fact: Increased access to prescription contraception increases the teen birth rate – so we should not trust contraception at all.

Reality: History clearly shows that as the birth control pill became more accessible throughout the 1960s, 70s, and 80s, teen birth rates across the U.S. decreased. Modern research shows that same effect: In the CHOICE study that took place between 2007 and 2011, St. Louis teenagers at high risk for unintended pregnancy were given their choice of any prescription contraceptive at no cost – and they experienced abortion and teen birth at less than half of the national and regional rates.

It’s a scientific fact that contraception works and that better insurance coverage helps prevent unintended pregnancies. Decreasing contraception access by weakening the ACA’s birth control mandate can only result in more unintended pregnancies, more unnecessary abortions, and higher healthcare costs. That’s something that we can all agree we don’t want – regardless of religious or moral convictions.

Nina Dutta is an advocate for women’s health and reproductive rights and a former Obstetrics & Gynecology researcher. She is a rising 2L at the University of Michigan Law School and is currently a Legal Intern for Legal Voice.

Friday, June 30, 2017

What Paid Family & Medical Leave Means to Me—and What It Means for You

By Janet Chung

Some 25 or so years ago, I was just out of college and about to start law school, excited to be an intern at the then-Women’s Legal Defense Fund (now, the National Partnership for Women & Families). I was tasked with researching state family and medical leave laws as part of the effort to pass the federal Family and Medical Leave Act.

To be honest, the research was somewhat academic to me at the time; interesting, but academic. I learned that the U.S. lagged behind almost every developed nation because we lacked (and still do) even paid maternity leave, let alone other forms of paid leave. I learned that some states had passed laws that protected people’s jobs when they had to take time off from work to care for their families or for themselves. I learned that it was important to make these laws gender-neutral, because even if women are in fact still most often the primary caregivers in their families and the ones to give birth, and therefore, the ones who need the time off, a law limited to maternity leave would keep that status quo and reinforce stereotypes. (I am quite sure I was not aware of the idea of transgender men becoming pregnant until 2008. [And to the naysayers: I stand by the utility of my People magazine subscription!])

In short, I knew being able to keep your job when you experienced a family health crisis or a new baby was important. Yet still, unpaid leave for those reasons wasn’t something I personally needed. Moreover, the idea of paid family and medical leave was, if you will, still but a gleam in my eye. Pie in the sky.

Several years later, I was back at the National Partnership as a legal fellow. At that point, after multiple vetoes, thanks to a change in the executive branch, the Family and Medical Leave Act had finally been signed into law (in 1993). I still remember my boss, the visionary Donna Lenhoff, telling me, “Now, we need to start working on paid leave.” She referred to it as “family leave insurance,” or “income” – because the idea was that funding wouldn’t be the sole responsibility of the individual, or any one employer. Rather, it would be like the unemployment insurance system – a system that relied on pooled funds to help soften the blow when the unpredictable rainy days came to pass.

Fast forward a few years. At this point, I am no longer a carefree single person, with parents in good health, with a good stable income, whose primary concern was where to go on my next vacation. I am now a working lawyer, a mother who’s experienced two pregnancies, one with some complications and that ended in a C-section. I am no longer part of a high-earning dual-income couple. My parents and children have been diagnosed with serious health conditions. I’ve watched close friends and colleagues experience caring for their parents through declining health and, often, up to death. They’ve also miscarried, been placed on bed rest, and had children, some with serious health conditions. Friends have had brain tumors, cancer diagnoses, hip replacements. Because that is life. 

So the passage of paid family and medical leave law in my adopted home state of Washington is particularly meaningful to me. I still consider myself lucky, privileged. But after those intervening decades, I now know – this isn’t just academic. This law is not merely a statement piece for gender equality. This is an important progressive policy that will transform thousands of lives. Like yours. Like mine.

Because let’s face it: America simply hasn’t been that great to too many of its denizens. So it’s wonderful, on the eve of the celebration of our nation’s birth, to have something to celebrate that shows the best of what our democratic process can create: a law that values the people and their families who are at the country’s heart.

Highlights of the new law:
  • Once the law goes into effect, you will be able to take up to 12 weeks of paid leave for family caregiving and 12 weeks of paid medical leave, with a combined annual cap of 16 weeks of paid leave. For those with pregnancy-related health complications, the cap is extended to 18 weeks. 
  • A key feature is portability; to be eligible, you have to have worked a threshold number of hours (820 hours in the qualifying period, which in most cases is the first 4 of the last 5 quarters), but the hours can be with different employers. Moreover, even self-employed individuals and independent contractors can elect coverage. 
  • The law also defines “family” broadly to include children, grandchildren, grandparents, parents, parents-in-law, siblings, and spouses – in recognition of the reality of family caregiving. 
  • The benefit is a progressive benefit; in other words, those who earn less will receive a larger percentage of their wage, while high-earning workers will receive a smaller percentage of their wage. 
  • The program will be funded by contributions from both employers and employees. Someone working full time at $13.50 an hour and making about $28,000 a year will pay $1.36 a week and the employer will pay $.80 a week. Employers with 50 or fewer employees are exempt from paying the employer share of the premium. 
  • Employees of employers with 50 or more employees are entitled to be restored to the same or equivalent job, as with the FMLA. 
For more information, check out our Washington Work & Family Coalition website, which will be updated with the most current information about the new law. You can join us in thanking the key legislators who made this policy a reality by signing our community card.