New civil rights regulations released last month by the Biden administration presented school districts across the nation with a clear choice: Either adopt policies that allow transgender students to use the bathrooms, wear the uniforms and be called by the pronouns that correspond with their gender identity, or risk losing federal funding.
But several Republican-led states have responded with an equally clear message for their schools: Steer clear of such policies.
The clashing state and federal directives have put school officials in a difficult spot, education officials said. School boards may face federal investigations, litigation from parents, threats of a state takeover or lost funding.
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“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.”
The dispute centers on Title IX, the 1972 law prohibiting sex discrimination in educational programs that receive federal funding. The new regulations from the Biden administration interpret “discrimination on the basis of sex” to include discrimination on the basis of sex stereotypes and gender identity. The regulations did not address whether transgender students should be able to play on school sports teams corresponding to their gender identity. A second rule on that question is expected later.
“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona told reporters when the regulations were announced in April.
But in four separate lawsuits, filed in federal courts in Alabama, Louisiana, Texas and Kentucky, attorneys general in more than a dozen states are trying to block the regulations from going to effect in August as planned.
And lawyers for the Alliance Defending Freedom, a conservative Christian legal organization, have filed a challenge 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, said in a statement. “We want students in our district to have privacy and safety when they access sex-specific facilities.”
Most U.S. school districts receive federal funds for special education programs, and schools serving high concentrations of low-income families get federal support. But they get much more funding from state governments and, in some cases, local property taxes. Most school boards are directly answerable to their states.
“Schools are trying to ensure that kids are safe and that they have access to educational services,” said Francisco Negron Jr., founder of K12 Counsel, a school law advocacy and policy firm. “When there’s inconsistency in the law, it’s unsettling and it’s distracting.”
Several Republican-led states have passed laws that forbid transgender students’ use of school bathrooms and locker rooms that match their gender identity. Gov. Brad Little of Idaho signed a bill last month that bars teachers from referring to a student by a name or pronoun that does not align with the student’s birth sex without parental consent.
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 new regulations are premised in part on the Biden administration’s interpretation of Bostock v. Clayton County, the landmark 2020 Supreme Court case in which the court ruled that discrimination based on transgender status necessarily entails treating individuals differently because of their sex.
But in the lawsuits, Republican-led states argue that the Department of Education exceeded its authority by issuing regulations that expand the definition of what constitutes sex discrimination. They point out that the Bostock decision was about workplace discrimination, and that Title IX includes specific exceptions for separating the sexes in certain educational situations, like sports teams. That shows, they argue, that Title IX was intended to recognize biological differences between males and females, not to address gender identity.
And some Republican governors are not waiting for the courts to act.
“I am instructing the Texas Education Agency to ignore your illegal dictate,” Gov. Greg Abbott wrote in a letter to President Joe Biden this past week.
And Gov. Sarah Huckabee Sanders of Arkansas signed an executive order Thursday stating that schools in her state would continue to enforce restrictions on which bathrooms and pronouns transgender students are allowed to use.
“My message to Joe Biden and the federal government,” Sanders said at a news conference, “is we will not comply.”
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