HOUSE OF REPRESENTATIVES	H.B. NO.	1489
TWENTY-NINTH LEGISLATURE, 2017		H.D. 1
STATE OF HAWAII		S.D. 1

A BILL FOR AN ACT

RELATING TO CIVIL RIGHTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et. seq.) (Title IX), renamed the Patsy Mink Equal Opportunity in Education Act in 2002, has had an enormous impacttriggered a seismic shift in reducingthe education landscape by prohibiting discrimination on the basis of sex in programsby any education program or activity receiving federal funding. Here in Hawaii, the generation that followed Congresswoman Mink has taken pride in fostering diversity and equality: in the classroom, on the sports field, and in the workplace. Hawaii is a place where all are welcome and all are given the opportunity to succeed. Yet notwithstanding the gains made over the last four and a half decades, sex discrimination persists; indeed, recent public rhetoric demonstrates that the dream of true equality requires continued commitment at all levels of government. While the federal government's faithfulness to the principles of equality may ebb and flow with changing administrations, the legislature seeks to guarantee Hawaii's dedication to the principles articulated in Title IX.funds. The legislature also finds that Hawaii is rightfully proud of Patsy Mink's signature legislation, which has given millions of girls and women educational opportunities that were undreamed of before enactment of Title IX, in the classroom and on the playing fields; in research, teaching, and graduate schools; and in employment, medicine, law, and other professions. The legislature recognizes, however, that Patsy Mink's celebrated legacy has not been fully realized, and that the efficacy of Title IX federal protections against sex discrimination in education has been diminished and eroded. For these reasons, the legislature believes it is time to consider and address the need for a corollary to Title IX in state law.

Accordingly, the purpose of this Act is to ensure that the protections that have been articulated in Title IX and its attendant regulations continue here in Hawaii, notwithstanding changes in federal administrations, and that Hawaii continues to be a nationwide leader in promoting equality and opportunity.

SECTION 2. Section 368-1.5, Hawaii Revised Statutes, is amended to read as follows:

"368-1.5 Programs and activities receiving state financial assistance. (a) No otherwise qualified individual in the State shall, [solely] by reason of [his or her] disability, sex, including gender identity or expression, or sexual orientation, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination by any state [agencies,] agency, or under any program or activity receiving state financial assistance.

(b) As used in this section, the [term "disability" means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment.] terms "disability", "sex", "gender identity or expression", and "sexual orientation" shall have the same meanings as those terms are defined in section 378-1.

(c) As used in this section, "state financial assistance" [means] shall be broadly construed and shall mean grants, purchase-of-service contracts, or any other arrangement by which the State provides or otherwise makes available assistance in the form of funds to an entity for the purpose of rendering services on behalf of the State. It does not include procurement contracts, state insurance or guaranty contracts, licenses, tax credits, or loan guarantees to private businesses of general concern that do not render services on behalf of the State."

The legislature recognizes that under the federal courts' interpretation of Title IX, a student who is subjected to sexual harassment has no claim for relief under Title IX absent a showing of "deliberate indifference." This is the federal standard applied to the abuse of prisoners, and it is far narrower than the standard applied in sexual harassment cases in an employment setting. In the absence of a state Title IX corollary, a minor student who is the victim of sexual harassment or sexual assault that was perpetrated at school by an adult employee or administrator will have no effective civil rights protection. In contrast, similarly situated teachers, custodians, counselors, office staff, and administrators will be effectively protected under state and federal fair employment laws, specifically, part I of chapter 378, Hawaii Revised Statutes, and Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), respectively. As a result, adult employees are presently protected against sexual harassment in state educational programs, while students, including children, are not.

The legislature is further aware that in 2017, the Trump Administration reversed the federal government's previous interpretation of the prohibition against discrimination based on "sex" that included discrimination based on sexual orientation and gender identity and expression. It also issued an interim rule rescinding its guidance on the investigation of campus sex assaults. These rollbacks in federal Title IX protections highlight the need for a state Title IX corollary to protect the students entrusted to our schools from sex discrimination, including sexual harassment and sexual assault.

Accordingly, the purpose of this Act is to provide for a state corollary to Title IX that prohibits discrimination on the basis of sex, including gender identity or expression, or sexual orientation, in any state educational program or activity, or in any educational program or activity that receives state financial assistance, without regard to whether the educational program or activity also receives federal funds.

It is the intent of the legislature that placement of this new protection in chapter 368, Hawaii Revised Statutes, will provide for enforcement procedures and remedies under that chapter, as well as rulemaking, by the Hawaii civil rights commission.

SECTION 2. Chapter 368, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"368-   State educational programs and activities; discrimination prohibited. (a) No person in the State, on the basis of sex, including gender identity or expression, or sexual orientation, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under:

(1) Any state educational program or activity; or

(2) Any educational program or activity that receives state financial assistance.

(b) Nothing shall preclude any student of a state educational program or activity, or an educational program or activity that receives state financial assistance, from bringing a civil action for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto; provided that notwithstanding section 368-12, the commission shall issue a notice of right to sue on a complaint filed with the commission if it determines that a civil action alleging similar facts has been filed in circuit court.

(c) As used in this section:

"Educational program or activity that receives state financial assistance" means any educational program or activity that receives state financial assistance, in any amount, for any purpose. The term does not exclude an educational program or activity that also receives federal funds.

"State educational program or activity" includes an educational program or activity of the University of Hawaii, the department of education, and public charter schools."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect on July 1, 2050.2019.

Report Title:

Education; Civil Rights; Discrimination; Sex; Sexual Orientation; Gender Identity or; Gender Expression; Sexual Orientation

Description:

Prohibits a state agency or program or activity receiving state financial assistance from excluding from participation, denying benefits to, or discriminating against a qualified individual by reason of disability, sex, including gender identity or expression, or sexual orientation. (HB1489 HD1)

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. Takes effect on 7/1/2019. (SD1)

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