The Hawaii legislature passed a law earlier this month ensuring the federal sex nondiscrimination protections found in Title IX extend to cover LGBTQ students as well.
It’s a novel approach that mitigates the conflict over whether the protected category of “sex” applies to “sexual orientation” and “gender identity.” Several federal courts have ruled in recent years that Title VII’s employment protections and Title IX’s education protections on the basis of sex do extend to LGBTQ people. Conservatives argue, conversely, that because members of Congress have tried to pass bills enumerating “sexual orientation” and “gender identity” as separate protected categories of identity, it’s proof that they don’t belong under the umbrella of “sex.”
The Hawaii law, HB 1489, recognizes that these two arguments aren’t in conflict with each other. It provides a “state corollary to Title IX that prohibits discrimination on the basis of sex, including gender identity or expression, or sexual orientation, in any state educational program or activity, or in any educational program or activity that receives state financial assistance, without regard to whether the educational program or activity also receives federal funds.”
Essentially, the law stipulates that even if the federal government is not enforcing Title IX to protect LGBTQ students from discrimination, the state of Hawaii will. It ensures that LGBTQ students can participate in any educational program without being denied access or otherwise being discriminated against because of their sexual orientation or gender identity. And that’s because it clarifies that “sex” includes all variations of sexuality and gender.
The law appears to be a direct rebuke of the Trump administration’s decision to abandon Obama-era regulations protecting LGBTQ students under the law. In fat, the Education Department has explicitly said it’s not considering any complaints from transgender students being denied access to facilities because of their gender identity.
State Sen. Jill Tokuda (D), who supported the law, told Honolulu Civil Beat that it’s “a huge step for Hawaii,” even if the bill has gone under the radar. “People haven’t really realized what we’ve done, but this is going to go very far in terms of protecting our kids,” she said.
The only lawmaker who opposed the bill was Rep. Bob McDermott (R). He has previously made a name for himself as one of the state’s biggest opponents of marriage equality and a vocal advocate against sex education.
In addition to implementing the LGBTQ protections, the law also calls on the state’s legislative reference bureau to study other Title IX policies across the nation. It’ll report back before next year’s legislative session with recommendations about any other improvements that can be made, including mechanisms for investigating and enforcing the law. Either way, the law’s LGBTQ protections will take effect in 2020.
Hawaii lawmakers also passed a ban on conversion therapy earlier this year. The state’s Supreme Court likewise just refused to hear an anti-gay bed & breakfast owner’s challenge to the state’s nondiscrimination laws.