Regulation - Protected Status: Gender (or sex), Gender Identity (including transgender), Gender Expression and Sexual Orientation
The California State University does not discriminate on the basis of gender (or sex), gender identity (including transgender), gender expression or sexual orientation - as these terms are defined in CSU policy - in its programs and activities, including admission and access. Federal and state laws, including Title IX of the Education Amendments of 1972, prohibit such discrimination. The California State University is committed to providing equal opportunities to all CSU students in all campus programs, including intercollegiate athletics. Inquiries concerning compliance may be presented to this person at 408-924-1200 or the Office for Equal Opportunity, UPD 303, 408-924-1115. CSU Executive Order 1097 Revised October 5, 2016 (www.calstate.edu/EO/EO-1097-rev-10-5-16.pdf) (or any successor executive order) is the systemwide procedure for all complaints of discrimination, harassment or retaliation made by students against the CSU, a CSU employee, other CSU students or a third party.
Title IX of the Education Amendments of 1972 protects all people regardless of their gender, gender identity, gender expression or sexual orientation from gender discrimination, which includes sexual harassment and violence:
Sexual Discrimination means an adverse action taken against a student by the CSU, a CSU employee, or another student because of gender or sex (including sexual harassment, sexual violence, domestic violence, dating violence, and stalking) that is perpetrated against an individual on a basis prohibited by Title IX of the Education Amendments of 1972, 20 U.S.C. %A71681 et seq., and its implementing regulations, 34 C.F.R. Part 106 (Title IX); California Education Code %A766250 et seq., and/or California Government Code %A711135.
Sexual Harassment, a form of sex discrimination, is unwelcome verbal, nonverbal or physical conduct of a sexual nature that includes, but is not limited to, sexual advances, requests for sexual favors, and any other conduct of a sexual nature where:
- Submission to, or rejection of, the conduct is explicitly or implicitly used as the basis for any decision affecting a complainant's status or progress, or access to benefits and services, honors, programs, or activities available at or through the university; or
- The conduct is sufficiently severe, persistent or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the complainant, and is in fact considered by the complainant, as limiting his or her ability to participate in or benefit from the services, activities or opportunities offered by the university; or
- The conduct is sufficiently severe, persistent or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the complainant, and is in fact considered by the complainant, as creating an intimidating, hostile or offensive environment.
Sexual harassment could include being forced to engage in unwanted sexual contact as a condition of membership in a student organization; being subjected to video or photographic exploitation, or a campaign of sexually explicit graffiti; or frequently being exposed to unwanted images of a sexual nature in a classroom that are unrelated to the coursework. Executive Order 1097 covers unwelcome conduct of a sexual nature. While romantic, sexual, intimate, personal or social relationships between members of the University community may begin as consensual, they may evolve into situations that lead to sexual harassment or sexual misconduct, including dating or domestic violence, or stalking, subject to this policy. Claiming that the conduct was not motivated by sexual desire is not a defense to a complaint of harassment based on gender.
Sexual Misconduct: All sexual activity between members of the university community must be based on affirmative consent. Engaging in any sexual activity without first obtaining affirmative consent to the specific activity is sexual misconduct, whether or not the conduct violates any civil or criminal law. Sexual activity includes, but is not limited to, kissing, touching intimate body parts, fondling, intercourse, penetration of any body part, and oral sex. It also includes any unwelcome physical acts, such as unwelcome sexual touching, sexual assault, sexual battery, rape, and dating violence. When based on gender, domestic violence or stalking also constitute sexual misconduct. Sexual misconduct may include using physical force, violence, threat or intimidation, ignoring the objections of the other person, causing the other person's intoxication or incapacitation through the use of drugs or alcohol, or taking advantage of the other person's incapacitation (including voluntary intoxication) to engage in sexual activity. Men as well as women can be victims of these forms of sexual misconduct. Sexual activity with a minor is never consensual when the complainant is under 18 years old, because the minor is considered incapable of giving legal consent due to age.
Sexual Assault is a form of sexual misconduct and is an attempt, coupled with the ability, to commit a violent injury on the person of another because of that person's gender or sex.
Sexual Battery is a form of sexual misconduct and is any willful and unlawful use of force or violence upon the person of another because of that person's gender or sex as well as touching an intimate part of another person against that person's will and for the purpose of sexual arousal, gratification or abuse.
Rape is a form of sexual misconduct and is non-consensual sexual intercourse that may also involve the use of threat of force, violence, or immediate and unlawful bodily injury or threats of future retaliation and duress. Any sexual penetration, however slight, is sufficient to constitute rape. Sexual acts including intercourse are considered non-consensual when a person is incapable of giving consent because s/he is incapacitated from alcohol and/or drugs, is under 18 years old, or if a mental disorder or developmental or physical disability renders the person incapable of giving consent. The respondent's relationship to the person (such as family member, spouse, friend, acquaintance or stranger) is irrelevant.
Acquaintance Rape is a form of sexual misconduct committed by an individual known to the victim. This includes a person the victim may have just met; i.e., at a party, introduced through a friend, or on a social networking website.
Affirmative Consent means an informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that s/he has the affirmative consent of the other participant(s) to engage in the sexual activity. Lack of protest or resistance does not mean consent nor does silence mean consent. Affirmative consent must be voluntary, and given without coercion, force, threats or intimidation.
- The existence of a dating or social relationship between those involved, or the fact of past sexual activities between them, should never by itself be assumed to be an indicator of affirmative consent. A request for someone to use a condom or birth control does not, in and of itself, constitute affirmative consent.
- Affirmative consent can be withdrawn or revoked. Consent to one form of sexual activity (or sexual act) does not constitute consent to other forms of sexual activity. Consent given to sexual activity on one occasion does not constitute consent on another occasion. There must always be mutual and affirmative consent to engage in sexual activity. Consent must be ongoing throughout a sexual activity and can be revoked at any time, including after penetration. Once consent is withdrawn or revoked, the sexual activity must stop immediately.
- A person who is incapacitated cannot give affirmative consent. A person is unable to consent when s/he is asleep, unconscious or is incapacitated due to the influence of drugs, alcohol, or medication so that s/he could not understand the fact, nature or extent of the sexual activity. A person is incapacitated if s/he lacks the physical and/or mental ability to make informed, rational decisions. Whether an intoxicated person (as a result of using alcohol or other drugs) is incapacitated depends on the extent to which the alcohol or other drugs impact the person's decision- making capacity, awareness of consequences, and ability to make fully informed judgments. A person's own intoxication or incapacitation from drugs or alcohol does not diminish that person's responsibility to obtain affirmative consent before engaging in sexual activity.
- A person with a medical or mental disability may also lack the capacity to give consent.
- Sexual activity with a minor (a person under 18 years old) is not consensual, because a minor is considered incapable of giving legal consent due to age.
- It shall not be a valid excuse that a person affirmatively consented to the sexual activity if the respondent knew or reasonably should have known that the person was unable to consent to the sexual activity under any of the following circumstances:
The person was asleep or unconscious;
The person was incapacitated due to the influence of drugs, alcohol or medication, so that the person could not understand the fact, nature or extent of the sexual activity;
The person was unable to communicate due to a mental or physical condition.
- It shall not be a valid excuse that the respondent believed that the person consented to the sexual activity under either of the following circumstances:
The respondent's belief in affirmative consent arose from the intoxication or recklessness of the respondent;
The respondent did not take reasonable steps, in the circumstances known to the respondent at the time, to ascertain whether the person affirmatively consented.
Consensual Relationships: Consensual relationship means a sexual or romantic relationship between two persons who voluntarily enter into such a relationship. While sexual and/or romantic relationships between members of the University community may begin as consensual, they may evolve into situations that lead to discrimination, harassment, retaliation, sexual misconduct, dating or domestic violence, or stalking.
- A university employee shall not enter into a consensual relationship with a student or employee over whom s/he exercises direct or otherwise significant academic, administrative, supervisory, evaluative, counseling, or extracurricular authority. In the event such a relationship already exists, each campus shall develop a procedure to reassign such authority to avoid violations of this policy.
- This prohibition does not limit the right of an employee to make a recommendation on the personnel matters concerning a family or household member where the right to make recommendations on such personnel matters is explicitly provided for in the applicable collective bargaining agreement or MPP/confidential personnel plan.
Domestic Violence is abuse committed against someone who is a current or former spouse, current or former cohabitant, someone with whom the abuser has a child, someone with whom the abuser has or had a dating or engagement relationship, or a person similarly situated under California domestic or family violence law. Cohabitant means two unrelated persons living together for a substantial period of time, resulting in some permanency of relationship. It does not include roommates who do not have a romantic, intimate, or sexual relationship. Factors that may determine whether persons are cohabiting include, but are not limited to (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship. For purposes of this definition, "abuse" means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Abuse does not include non-physical, emotional distress or injury.
Dating Violence is abuse committed by a person who is or has been in a social or dating relationship of a romantic or intimate nature with the victim. This may include someone the victim just met; i.e., at a party, introduced through a friend, or on a social networking website. For purposes of this definition, "abuse" means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Abuse does not include non-physical, emotional distress or injury.
Stalking means a repeated course of conduct directed at a specific person that would cause a reasonable person to fear for his/her or others' safety or to suffer substantial emotional distress. For purposes of this definition:
- Course of conduct means two or more acts, including but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about a person, or interferes with a person's property;
- Reasonable person means a reasonable person under similar circumstances and with the same protected status(es) as the complainant;
- Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.