Hawaii moved a step closer to expanding protections for students discriminated against on the basis of sex, gender identity or sexual orientation when the Legislature passed a bill Tuesday establishing a law to prohibit such treatment.
House Bill 1489 received near-unanimous support from both chambers and now heads to the governor’s desk for his signature. It creates a statute prohibiting gender-based discrimination in any school or education program in Hawaii that receives state funding, opening the door for aggrieved students to file a civil cause of action under that law.
The law has a delayed effective date of Jan. 1, 2020.
Viewed as establishing a state corollary to Title IX of the Education Amendments of 1972 — the federal law that prohibits sex-based discrimination in federally funded education programs — the bill got impassioned support from the Women’s Legislative Caucus and local advocacy groups this session.
“This is a huge step for Hawaii,” said state Sen. Jill Tokuda, a member of the caucus who revived the measure, a carryover from last year. “The bill has gone largely unnoticed this session. People haven’t really realized what we’ve done, but this is going to go very far in terms of protecting our kids.”
Passage came despite Department of Education resistance. In 2011, the DOE came under federal investigation for failing to adequately handle student complaints of sex-based harassment and discrimination. The agency told lawmakers this session the bill was not necessary in light of the compliance steps it’s since taken under a resolution agreement with the U.S. Department of Education Office for Civil Rights.
At the federal level, the Trump administration has rescinded Obama-era protections for transgender students under Title IX and withdrawn guidance for how colleges should handle cases of sexual assault.
Hawaii supporters of the bill said establishing a state anti-discrimination law is especially necessary given the state and national obstacles.
“HB 1489 is a historic victory for women and LGBT students in Hawaii,” said Khara Jabola-Carolus, executive director of the Hawaii State Commission on the Status of Women. “I applaud the Women’s Legislative Caucus and feminist advocates for taking action to beat back against the federal administration’s attack on civil rights.”
The final version of the bill reflected a significant trimming, most notably in the enforcement arena. Nixed was a provision giving the Hawaii Civil Rights Commission jurisdiction to field student complaints and issue a right-to-sue letter against a state-funded education program.
Instead, the bill commissions the state’s nonpartisan Legislative Reference Bureau to conduct a study over the next year of existing Title IX enforcement practices, review remedies that are available in other jurisdictions and spot any inconsistencies between federal law and other state policies.
That review is due to the Legislature before the 2019 session.
“I think it’s a significant bill,” said Bill Hoshijo, executive director of the Civil Rights Commission. “The Legislature is taking a two-step approach where they enact civil rights protections this year. They give themselves time to complete the enabling legislation next year, with the study in between.”
“There was no guarantee that anything was going to pass this session,” Hoshijo added. “The effort reflected that they (lawmakers) really wanted this.”
Regardless of whether the Legislature will be able to hammer out details when they reconvene next year to establish more of an enforcement mechanism, the statutory piece will take effect.
Hawaii is now one of the only states to establish a state parallel to Title IX.
Supporters said while the bill was weakened, they are grateful a version passed.
“Hopes were very high,” said Tokuda, former Senate Education Committee chair. “I think people wanted to see something passed with enforcement teeth as well as codification of the corollary at the same time. That can oftentimes be difficult.”
The only legislator voting against passage was Rep. Bob McDermott, a Republican.
Asked to comment on the final version of the bill, DOE spokeswoman Donalyn Dela Cruz said, “the Department is pleased that some of the concerns raised were addressed.”
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