The Biden administration published new Title IX rules two weeks ago regarding transgender students that have driven half a dozen states to reject the changes out of hand. This is a risky move considering that the refusal to comply could result in a loss of federal education funding for the state.
The schools must adopt policies that allow transgender students to use the bathrooms, wear uniforms, and be called by the pronouns that correspond with their gender identity. Many of the states that are defying the new rules have laws that directly contradict those rules.
The battle that's shaping up between the federal and state governments promises to be one of the most significant constitutional tests in recent decades. But it's easy to forget that caught in the middle of this controversy are schools. No matter direction they choose to go, school boards are facing litigation from parents, threats of a state takeover, or the aforementioned loss of funding.
“No matter which way a school district goes, they’re going to possibly draw a lawsuit from someone in disagreement, whether that’s a federal regulator or a private person who doesn’t agree with how the district handled it,” said Sonja Trainor, managing director for school law at the National School Boards Association. “A lot of schools are going to be in no man’s land.”
These new rules don't even deal with transgender students in athletics, which the Biden administration is holding off finalizing until after the election.
“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Miguel A. Cardona, the education secretary, told reporters.
What's "safe" about an anatomical male sharing a bathroom with girls?
Already there are four separate lawsuits filed by Republican-led states against the new rules, which are scheduled to go into effect in August. And lawyers for the conservative Christian legal organization Alliance Defending Freedom have filed suit on behalf of the Rapides Parish School Board in Louisiana.
“We would not want to put ourselves in a position where the federal government would take funding away because we follow the original purpose of Title IX,” Jeff Powell, the district superintendent of the parish school board, said in a statement. “We want students in our district to have privacy and safety when they access sex-specific facilities.”
Education officials in at least five states — Oklahoma, Florida, Louisiana, Montana and South Carolina — have urged school boards to maintain policies that “recognize the distinction between sex and gender identity,” as Elsie Arntzen, Montana’s superintendent of public instruction, put it in her letter to school leaders in the state.
For now, the new federal regulations supersede any state law or directive from a state official on the issue. But one or more federal judges, legal experts said, could issue an order blocking the regulations from taking effect locally or nationally while the lawsuits make their way through the courts. And the issue may ultimately reach the Supreme Court, which has so far declined to weigh in on how Title IX should be interpreted with regard to gender identity.
The Biden administration is basing the new rules on the 2020 Suporeme Court decision in Bostock v. Clayton County, where the court ruled "discrimination based on transgender status necessarily entails treating individuals differently because of their sex," according to the Times.
But conservative-led states claim that the Department of Education exceeded its authoritiy by fundamentally changing the definition of "sex discrimination." Besides, Bostock was about discrimination in the workplace. It's a stretch of the law to apply the decision to schools.
“My message to Joe Biden and the federal government,” Arkansas Governor Sarah Huckabee Sanders said at a news conference, “is we will not comply.”
That seems to be the attitude of most red states when it comes to this ghastly federal overreach.
