Civil Rights Act Changes (May 2009 School Leader Update) By Carol Greta, Attorney, Iowa Department of Education
The addition of two new protected classes to Iowa’s Civil Rights Act (Iowa Code Chapter 216) affects schools, area educational agencies (AEAs), and colleges – both public and nonpublic – in several ways. The two new protected classes are gender identity and sexual orientation. Chapter 216 defines the new protected classes as follows:
“Gender identity” means a gender-related identity of a person, regardless of the person’s assigned sex at birth.
“Sexual orientation” means actual or perceived (emphasis added) heterosexuality, homosexuality, or bisexuality.
As educational institutions, all districts, nonpublic schools, AEAs, community colleges, and all other institutions of higher learning are governed by the provisions of section 216.9, below. The amended education law (with new language underscored) now reads as follows:
216.9 Unfair or discriminatory practices education.
It is an unfair or discriminatory practice for any educational institution to discriminate on the basis of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in any program or activity. Such discriminatory practices shall include but not be limited to the following practices:
- Exclusion of a person or persons from participation in, denial of the benefits of, or subjection to discrimination in any academic, extracurricular, research, occupational training, or other program or activity except athletic programs;
- Denial of comparable opportunity in intramural and interscholastic athletic programs;
- Discrimination among persons in employment and the conditions of employment;
- On the basis of sex, the application of any rule concerning the actual or potential parental, family or marital status of a person, or the exclusion of any person from any program or activity or employment because of pregnancy or related conditions dependent upon the physician’s diagnosis and certification.
For the purpose of this section, “educational institution” includes any preschool, elementary, secondary, or community college, area education agency, or postsecondary college or university, and their governing boards. This section does not prohibit an educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes so long as comparable facilities are provided. Nothing in this section shall be construed as prohibiting any bona fide religious institution from imposing qualifications based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose or any institution from admitting students of only one sex. These new protected classes must be added to the nondiscrimination statement used by an educational institution. For instance, the Iowa Department of Education (DE) revised its nondiscrimination statement to read as follows:
It is the policy of the Iowa Department of Education not to discriminate on the basis of race, creed, color, sexual orientation, gender identity, national origin, gender, disability, religion, age, political party affiliation, or actual or potential parental, family or marital status in its programs, activities, or employment practices as required by the Iowa Code sections 216.9 and 256.10(2), Titles VI and VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000d and 2000e), the Equal Pay Act of 1973 (29 U.S.C. § 206, et seq.), Title IX (Educational Amendments, 20 U.S.C.§§ 1681 1688), Section 504 (Rehabilitation Act of 1973, 29 U.S.C. § 794), and the Americans with Disabilities Act (42 U.S.C. § 12101, et seq.). [Obviously, the DE’s statement goes beyond 216.9. Other educational institutions are not required to be so broad, but are not prohibited from using the above language.]
Educational institutions need to remember that nondiscrimination includes programs offered such as before- and after-school programs, community education programs, alternative programs, and to related organizations such as booster clubs, student clubs, and parent-teacher organizations (PTOs). (This is not meant to be an exhaustive list.) Note also that if you have an attendance center in which the Boy Scouts meet, the sexual orientation and gender identity provisions of Iowa law do not apply to the Boy Scouts. And as places of public accommodations, districts, AEAs, and community colleges are also governed by section 216.7.
The amended public accommodations law (with new language underscored) now reads as follows:
216.7 Unfair practices accommodations or services. 1. It shall be an unfair or discriminatory practice for any owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof: a. To refuse or deny to any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in the furnishing of such accommodations, advantages, facilities, services, or privileges. b. To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability is unwelcome, objectionable, not acceptable, or not solicited.
In essence, this law means that the provider of a public accommodation cannot deny service, tell someone to leave or provide different service to a person because of that person’s sexual orientation or gender identity (or other listed protected classification). Providers (such as school districts, AEAs, and community colleges) also may not use any advertising tending to indicate that persons of a particular sexual orientation or gender identity are unwelcome.
The DE does not regulate chapter 216. The Iowa Civil Rights Commission (ICRC) is the state agency with authority over complaints that an educational institution or a public accommodation violated the Civil Rights Act. The director of ICRC is more than willing to answer specific questions about the new law. The Director may be reached at 515-242-6537. There are also good resources at ICRC’s Website, http://www.state.ia.us/government/crc/index.html.