Maricopa County Community College’s Governing Board is considering adding “gender identity” to the district’s non-discrimination policies. Center for Arizona Policy submitted this letter explaining why these changes should not be approved. 

August 23, 2011

Randolph Lumm
President, Office of the Governing Board
Maricopa Community Colleges
2411 West 14th Street
Tempe, AZ 85281

Dear Mr. Lumm,

By way of brief introduction, Center for Arizona Policy is a nonprofit education and advocacy organization dedicated to family-friendly public policy. The Center is supported by tens of thousands of concerned citizens across Arizona.

The Center and its supporters urge the Governing Board to reject the proposed change to the Maricopa County Community College District’s non-discrimination policies (August 23 Governing Board Agenda Item Number VI.A). The proposed change adds “gender identity” to the protected classes. In addition to being extremely vague, the proposed change is likely to place the colleges in a position to violate the federal and state constitutions and state law protecting students’ religious liberty and freedom of speech. Additionally, this policy will place great compliance burdens on the colleges and create practical hurdles for employees.

The policy change threatens to violate students’ religious liberty, which is protected by both the federal and state constitutions and is specifically protected by Arizona state law. See Ariz. Rev. Stat. §§ 15-1861 through 1864. This state law also calls into question the validity of the existing policies which appear to regulate “discrimination” on the basis of sexual orientation and suffers from many of the problems described in this letter.

Policies like the Maricopa EEO Policy (which is presumably applied to students by Administration Regulation 2.4.2) may be used to impermissibly censor student speech, particularly speech based on a student’s religious views. Colleges and universities around the country have faced (and frequently lost) significant litigation over violating students’ constitutional rights through this type of policy. See Foundation for Individual Rights in Education, Case Archive, http://thefire.org/cases/all/ (last visited Aug. 22, 2011).

Nearly every campus of the Maricopa Community College District also includes extra-curricular religious student organizations. These student clubs are valuable members of the college community and provide a wealth of contributions to the campus. The proposed policy will violate the constitutional and statutory rights of the students in these groups by forcing them to accept members or leaders whose views conflict with the mission of the group – in direct conflict with Arizona state law. Ariz. Rev. Stat. § 15-1863.

The proposed change also adds vague language to District non-discrimination policies. The term “gender identity” is entirely subjective and confuses students, faculty members, and employees as to correct conduct in the classroom or workplace. This uncertain term requires students, professors, and employees “to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (quotation and citations omitted). Ambiguity in both the proposed and existing policy creates a chilling effect on the exercise of First Amendment rights. See id.

In addition, the proposed recommendation states that the changes “would include, but not be limited to” the administrative regulations listed on the document. By not providing advance notice of the specific changes in language and the precise instances where the changes would be applied, the Board is not only denying students, professors, and employees the opportunity to evaluate and comment on major policy changes that affect them, but is also violating due process by failing to inform students and employees of policies by which they will be expected to abide. A government policy that “either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Cramp v. Bd. of Pub. Instruction of Orange County, Fla, 368 U.S. 278, 287 (1961).

The Board must understand that once added to the District’s non-discrimination policies, “gender identity” protection can create dire practical concerns for the colleges. The proposed change would require that persons engaging in sex-segregated classes or extra-curricular activities be able to participate as a member of the sex they choose. For instance, if a biological male professing a female identity wanted to play for a District women’s athletic team, the college would be in violation of its non-discrimination policy to prevent the male from participating. Colleges within the District would also be faced with the prospect of allowing persons to access locker-rooms and bathrooms in accordance with the sex they choose.

The proposed policy change would have a direct, negative impact on the academic environment by creating unnecessary distractions. The District will no longer be able to maintain a reasonable dress code for its employees to foster a professional environment focused on learning. Professors and classmates would be required to address an individual by the sex of their choosing. An employee, professor, or student who interacts with a long-time, biologically-male acquaintance must instantly begin addressing the male with a female pronoun should the male decide to present himself as a female. If a person fails to address the individual as a female, the individual would face disciplinary action for discrimination, up to and including termination or expulsion.

Current regulations enacted by the Maricopa Community College District provide adequate protection for students in the classroom. Unnecessarily changing the non-discrimination policy is certain to be an affront to the religious liberty of students and professors in violation of federal and state law. The policy change under consideration is excessively vague and would create tangible practical concerns that would cost the District more time and money to comply. I strongly urge you to reject the proposed change in District non-discrimination policies.

Sincerely,

Cathi Herrod, Esq.
President

cc: Governing Board of the Maricopa County Community College District

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