HB1775

SECTION 1. The legislature finds that 2022 is the fiftieth anniversary of the Patsy T. Mink Equal Opportunity in Education Act, otherwise known as Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) or simply "Title IX". Hawaii is proud of Congresswoman Mink's signature legislation, which has given millions of girls and women educational opportunities that were undreamed of before the enactment of Title IX, in the classroom and on the playing field; in research, teaching, and graduate schools; and in science, medicine, law, and other professions. The legislature also recognizes, however, that Congresswoman Mink's celebrated legacy has not yet been fully realized. The recent federal administrative rules adopted in 2020 by the Trump administration significantly diminished the rights and protections for students and employees under Title IX. For example, the new rules limit the application of federal Title IX policies to persons in the United States. This means that students participating in international programs, such as study abroad, are no longer protected under federal Title IX rules. The new rules also narrowed the definition of "sexual harassment", making it more difficult for victims to receive relief under Title IX.

The legislature also finds that Act 110, Session Laws of Hawaii 2018, created a state corollary to Title IX by prohibiting 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. The legislature further finds that in order to preserve Congresswoman Mink's intent to provide equal opportunity in education, further clarification of section 368D-1, Hawaii Revised Statutes, is required, as well as annual data reporting from the department of education, public charter schools, and the university of Hawaii, to ensure that the needs of victims of unlawful sex-based discrimination, including sexual harassment, gender-based harassment, and sexual assault, are properly addressed.

Accordingly, the purpose of this Act is to:

(1) Define the scope and application of chapter 368D, Hawaii Revised Statutes, and set forth requirements with which covered entities must comply; and

(2) Require annual reporting to the legislature on the number and types of Title IX cases received by the department of education, public charter schools, and the university of Hawaii, and other relevant information.

SECTION 2. Chapter 368D, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:

"§368D- Purpose; scope; construction. (a) The purpose of this chapter is to provide a framework for the enforcement of the state law corollary to Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) that is set out in section 368D-1.

(b) This chapter shall apply to the conduct of all students and employees of any covered educational program or activity and of third parties, provided that the conduct occurs:

(1) On the premises of the covered educational program or activity; or

(2) Outside of the premises of the covered educational program or activity, if:

(A) The conduct occurred in connection with the covered educational program or activity; or

(B) The conduct may have a continuing adverse effect on, or may create a hostile environment within, the covered educational program or activity.

(c) If any conflict arises between applicable mandatory federal requirements under Title IX (20 U.S.C. 1681 et seq.) and any state law requirements, the federal requirements shall prevail.

(d) Nothing in this chapter shall be construed to prohibit:

(1) The membership practices of social fraternities or sororities or voluntary youth service organizations, as set forth in title 20 United States Code section 1681(a)(6), as that section was in effect on January 1, 2019;

(2) Any educational institution receiving state funds from maintaining separate living facilities for different sexes, as set forth in title 20 United States Code section 1686, as that section was in effect on January 1, 2019; or

(3) An educational institution from administering, or assisting in administering, a scholarship, fellowship, or other form of financial assistance pursuant to a domestic or foreign will, trust, bequest, or similar instrument that requires awards to be made to members of a particular sex specified therein; provided that the overall effect of sex-restricted financial assistance shall not discriminate on the basis of sex, as set forth in title 34 Code of Federal Regulations section 106.37(b)(1), as that section was in effect on January 1, 2019.

(e) Nothing in this chapter shall preclude a student participating in any covered educational program or activity who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.

§368D- Definitions. As used in this chapter:

"Consent" means an affirmative, conscious, and voluntary agreement to engage in an agreed-upon form of sexual contact; provided that:

(1) Silence, or the absence of protest or resistance, does not constitute consent; and

(2) A person is unable to give consent when the person is:

(A) Under the age of consent for sexual contact, as provided in part V of chapter 707;

(B) Developmentally or intellectually disabled; or

"Covered educational program or activity" means:

(1) Any state educational program or activity; or

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

"Covered entity" means an entity having a covered educational program or activity.

"Dating violence" means physical, sexual, emotional, financial, or psychological abuse or threats of abuse against another person who is or has been in a social relationship of a romantic or intimate nature with the alleged perpetrator; provided that the existence of the relationship is evidenced by the following factors:

(1) Length of the relationship;

(2) Type of relationship; and

(3) Frequency of interaction between the persons involved in the relationship.

"Domestic violence" means physical, sexual, emotional, financial, or psychological abuse or threats of abuse against a family or household member. For purposes of this definition, "household member" means a cohabitant who is or was a spouse or intimate partner of the alleged perpetrator.

"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.

"Gender-based harassment" is a form of sex-based harassment that includes:

(1) Unwelcome conduct based on a person's actual or perceived sex or gender;

(2) Verbal, physical, or electronic conduct based on sex, gender, sexual orientation, or sex stereotyping that creates a hostile, intimidating, or abusive environment, even if the conduct is not sexual in nature; and

(3) Harassment in response to a person's exhibition of a perceived stereotypical characteristic for the person's sex, or to a person's failure to conform to stereotypical notions of masculinity or femininity, regardless of the person's actual or perceived sex, gender, sexual orientation, gender identity, or gender expression.

"Incapacitated" or "incapacitation" means a mental or physical state in which a person lacks the ability to understand the consequences of the person's actions and, as a result, is unable to make a rational, reasonable decision. States of incapacitation include:

(1) Sleep;

(2) Unconsciousness;

(3) Intermittent consciousness; or

(4) Any other state in which the person is unaware that sexual contact is occurring.

"Retaliation" means adverse action taken against a person because of the person's good faith participation in any of the following activities:

(1) Seeking advice or assistance about conduct prohibited under this chapter;

(2) Opposing or filing a complaint against conduct that the person reasonably believes to be prohibited under this chapter; or

(3) Testifying, assisting, or participating in an investigation or other proceeding related to a complaint of conduct addressed by this chapter.

For purposes of this definition, "adverse action" means an action that would dissuade a reasonable person from filing or supporting a complaint brought pursuant to this chapter.

"Sex discrimination" means any unlawful distinction, preference, or detriment to a person, in relation to other persons, that is based upon the person's sex or gender and is sufficiently serious to unreasonably interfere with or limit the ability of a person who is:

(1) A student, or applicant for admission, from participating in, accessing, or benefitting from a covered entity's programs, services, or activities, including admission, academic standing, grades, academic assignment, and on-campus housing;

(2) An employee, or applicant for employment, from accessing employment or conditions and benefits of employment, including hiring, advancement, and work assignment;

(3) An authorized volunteer from participating in a volunteer activity; or

(4) A guest or visitor from participating in, accessing, or benefitting from a covered entity's programs, services, or activities.

"Sexual assault" means an act of unwanted physical contact of a sexual nature with an intimate body part of another person that is committed by an acquaintance or stranger. Intimate body parts include genitalia, groin, breasts, buttocks, or mouth. Contact is unwanted when:

(1) The contact occurs without the consent of the other person; or

(2) The other person is incapacitated or otherwise incapable of giving consent.

"Sexual contact" means:

(1) Intentional touching or penetration of another person's clothed or unclothed body, including the other person's mouth, neck, anus, genitalia, groin, breast, or buttock, in a sexual manner, with any part of the body or with any object; or

(2) Causing another person to touch the person's own body, or the body of another person, in the manner described in paragraph (1).

"Sexual exploitation" means violating another person's sexual privacy or taking sexual advantage of another person in an unjust or abusive manner, without the person's consent. The term includes:

(1) Photographing or otherwise recording another person who is engaged in sexual activity, intercourse, or penetration, or who is in a state of undress, without the person's knowledge or consent;

(2) Sharing photographs, or video or audio recordings, of another person who is engaged in sexual activity, intercourse, or penetration, or who is in a state of undress, without the person's knowledge or consent;

(3) Watching another person who is currently engaging in sexual activity, without the person's knowledge or consent;

(4) Allowing other persons to watch sexual activity without the knowledge or consent of all persons engaging in the sexual activity;

(5) Exposing a person's intimate body part, including genitalia, groin, breast, or buttock, to another person without the person's consent;

(6) Engaging in sexual activity while in a public place and in view of another person who does not consent to witnessing the sexual activity; and

(7) Tampering with another person's beverage with the intent to impair the person's ability to withhold consent or to knowingly consent to sexual activity, regardless of whether any sexual activity actually occurs.

For purposes of this definition, "sexual exploitation" does not include sexual assault.

"Sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; provided that:

(1) Submission to, or rejection of, the conduct is either an explicit or implicit term or condition of a person's education, employment, or participation in a covered entity's programs, services, or activities;

(2) Submission to, or rejection of, the conduct by a person is used as a basis for decisions affecting the person's education, employment, or participation in a covered entity's programs, services, or activities; or

(3) The conduct is unwelcome to either the person to whom the conducted is directed, or to another person having direct awareness of the conduct; provided further that the conduct:

(A) Is severe, persistent, or pervasive; and

(B) Has the purpose or effect of either:

(i) Unreasonably interfering with the person's academic or work performance; or

(ii) Creating an intimidating, hostile, or offensive educational or work environment.

"Stalking" means two or more acts of unwanted and harassing behavior that are:

(1) Directed at a specific person;

(2) Sufficiently serious to cause physical, emotional, or psychological fear, or to create a hostile, intimidating, or abusive environment; and

(3) Objectively and subjectively perceived as hostile, intimidating, or abusive.

"State educational program or activity" means an educational program or activity of the university of Hawaii, the department of education, or public charter schools.

"Title IX" refers to the federal Education Amendments of 1972, codified as title 20 United States Code section 1621 et seq.

§368D- Designation of coordinator; publication of information; adoption of policies. No later than January 1, 2023, all covered entities shall:

(1) Designate a person, who shall be known as the Title IX coordinator, to oversee the covered entity's implementation of the requirements of this chapter, and the covered entity's response to alleged violations thereof;

(2) Annually publish the name and contact information of the Title IX coordinator to students and on the website of the covered educational program or activity; and

(3) Adopt a written policy for addressing complaints brought pursuant to this chapter. The written policy shall include provisions that address:

(A) The scope of the policy;

(B) The conduct or behavior prohibited under the policy;

(D) The applicable evidentiary standard of review, which shall be by preponderance of the evidence;

(E) The roles of various personnel of the covered educational program or activity; and

(F) Any resources available students and employees of the covered educational program or activity, including any advocacy services, assistance programs, and confidential or non-confidential support services.

§368D- Annual report to legislature. No later than September 1 of each year, each state educational program or activity shall submit to the legislature a report that includes information pertaining to the immediately preceding school year, as follows:

(1) The university of Hawaii shall include in its report to the legislature:

(A) The total number of complaints alleging a violation of this chapter that were received by the university, and the number of complaints received in each of the following categories:

(i) The number of complaints received at each campus of the university;

(ii) The number of complaints that involve each type of conduct prohibited under section 368D-1(b); and

(iii) The number of confidential complaints, informal complaints, and formal complaints, as applicable;

(B) Of the total number of complaints for each campus reported under subparagraph (A), the number of complaints involving:

(i) A student complainant and a student respondent;

(ii) A student complainant and an employee respondent;

(iii) An employee complainant and an employee respondent; and

(iv) An employee complainant and a student respondent;

(i) An investigation was commenced but a decision has not yet been rendered;

(ii) An investigation was completed and a decision was rendered; and

(iii) A party has filed an appeal, and the appeal is pending;

(D) The percentage of employees at each campus of the university who have completed a training course on the university's Title IX policies and procedures, and on any other policies and procedures adopted by the university in accordance with this chapter; and

(E) The percentage of students enrolled at each campus of the university who have completed a training course on the university's Title IX policies and procedures, and on any other policies and procedures adopted by the university in accordance with this chapter; and

(2) The department of education and each public charter school shall include in their respective reports to the legislature:

(A) The total number of complaints alleging a violation of this chapter that were received by a covered educational program or activity of the department of education or the public charter school, as applicable, and the number of complaints received in each of the following categories:

(i) The number of complaints received at each department of education complex area or public charter school, as applicable; and

(ii) The number of complaints that involve each type of conduct prohibited under section 368D-1(b);

(B) Of the total number of complaints reported under subparagraph (A) for each department of education complex area or public charter school, as applicable, the number of complaints involving:

(i) A student complainant and a student respondent;

(ii) A student complainant and an employee respondent;

(iii) An employee complainant and an employee respondent; and

(iv) An employee complainant and a student respondent;

(C) Of the total number of complaints reported under subparagraph (A) for each department of education complex area or public charter school, as applicable, the number of complaints in which:

(i) An investigation was commenced but a decision has not yet been rendered;

(ii) An investigation was completed and a decision was rendered; and

(iii) A party has filed an appeal, and the appeal is pending; and

(D) For the department of education only, the percentage of teachers, counselors, principals, and vice-principals, disaggregated by complex area, who have completed a training course on the department's Title IX policies and procedures, and on any other policies and procedures adopted by the department in accordance with this chapter."

SECTION 3. Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:

"§368D-1 [~~State~~] Covered educational programs and activities; discrimination and other conduct prohibited. (a) No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, 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.~~] any covered educational program or activity.

[(b) Nothing in this chapter shall be construed to prohibit the membership practices of social fraternities or sororities or voluntary youth service organizations, as set forth in title 20 United States Code Section 1681(a)(6), as in effect on January 1, 2019.

~~(c)~~ Nothing in this chapter shall be construed to prohibit any educational institution receiving state funds from maintaining separate living facilities for different sexes, as set forth in title 20, United States Code Section 1686, as in effect on January 1, 2019.

(d) Nothing in this chapter shall be construed to prohibit an educational institution from administering or assisting in administering a scholarship, fellowship, or other form of financial assistance pursuant to a domestic or foreign will, trust, bequest, or similar instrument that requires awards be made to members of a particular sex specified therein; provided that the overall effect of sex-restricted financial assistance shall not discriminate on the basis of sex, as set forth in title 34, Code of Federal Regulations section 106.37(b)(1), as in effect on January 1, 2019.

(e) Nothing in this chapter shall preclude a student participating in any educational program or activity who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.

~~(f) A person, or an organization or association on behalf of a person alleging a violation of this chapter may file a complaint pursuant to this chapter.~~

~~(g) As used in this section:~~

~~"State educational program or activity" means an educational program or activity of the University of Hawaii, the department of education, or public charter schools.~~]

(b) The following types of conduct shall be prohibited under any covered educational program or activity:

(1) Sex discrimination;

(2) Sexual harassment;

(3) Gender-based harassment;

(4) Sexual exploitation;

(5) Sexual assault;

(6) Domestic violence;

(7) Dating violence;

(8) Stalking; and

(9) Retaliation.

(c) Any person, or an organization or association on behalf thereof, who alleges a violation of this chapter may file a complaint with a covered entity pursuant to this chapter."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1775
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII