As state lawmakers prepared for a special session to discuss the impact of new federal Title IX regulations, state education leaders met with a legislative committee that urged the Utah Legislature to provide clarity on a apparent conflict between the regulations and a law on public school toilets.
HB257 requires K-12 students to use public school restrooms that correspond to gender assigned at birth, limiting transgender access to “privacy spaces” in public schools and other public buildings.
The Department of Education’s new Title IX rules, which take effect August 1, change the definition of sex discrimination to include gender identity and sexual orientation.
Title IX protects people from discrimination on the basis of sex in education programs or activities that receive federal financial assistance.
Chairman Jim Moss of the Utah State Board of Education said Tuesday in an address to the Legislature’s Federalism Commission that the state school board recently unanimously agreed to ask state lawmakers to use the Utah Constitutional Sovereignty Act to enforce of the new Title IX rules.
Under the bill, the Utah Legislature “could, in appropriate circumstances, prohibit a public official from enforcing or assisting in enforcing the federal directive within the state if it violates the principle of state sovereignty… or a right vested in the state reserved by the 10th Amendment or to provide for the health, safety and welfare and promote the prosperity of the residents of the state,” Moss said.
“We know full well that federal law is generally the supreme law of the land, but the state sovereignty law is designed to effectively mount a challenge (if) actions of any particular bureaucratic agency might exceed its powers. Ultimately, this could only be resolved by the court, but that is what the law is intended for. So we’ve asked for some consideration to be given as to whether that might apply here, and that will happen tomorrow during the special session,” Moss said.
Chairman of the House Federalism Committee Keven StrattonR-Orem, said he appreciated the board’s actions.
“I was very grateful for the unanimous decision because I know there is a broad spectrum of ideological perspectives on the board,” Stratton said.
The state school board also allocated $50,000 to hire a contract attorney to help the board’s assigned assistant attorneys general assess whether and how state law conflicts with federal law in light of the new Title IX regulations.
The board also agreed to spend $50,000 to hire an independent auditor to determine how much federal money the board has received in recent years and how much it spends to comply with federal laws.
State School Board Vice Chair Jennie Earl told committee members that schools want guidance on how to comply with the law.
“As the August 1 deadline approaches, there is confusion,” she said.
Rep. Gay Lynn Bennion, D-Cottonwood Heights, asked Moss and Earl ahead of the Legislature’s general session whether schools across the state had raised concerns about students using restrooms that match their gender identity.
“I’ve been on the board for about three and a half years now, so I’ve heard these concerns all the time,” Moss said.
He continued, “You have someone saying, identify this way, this is my sexual orientation. So how can you accommodate that person while protecting others? That has been a challenge during my time on the board.”
Moss said Utah school districts and charter schools have expressed concerns about how to move forward.
“There’s a state law that says very clearly, ‘Do this to protect girls in segregated space facilities,’ and there’s a federal law that says, ‘You can’t do that,’” he said.
HB257 went into effect in January, “so that has been the law since January. The Title IX regulations will go into effect on August 1. Currently, we have explained to our schools that we are subject to the requirements of state law,” he said.
Meanwhile, Utah has joined three other Republican Party-led states and four private entities in a lawsuit challenging the Title IX rules.
The other plaintiffs include the states of Kansas, Wyoming and Alaska, along with a parent, Shawna Rowland, who filed on behalf of her daughter, KR; and three private organizations, Moms for Liberty, Female Athletes United and Young America’s Foundation.
The lawsuit, filed in federal court in Topeka, seeks a declaratory judgment finding the final rule is unlawful and claiming the plaintiff is not bound by it.
It also seeks a declarative ruling that does not require “employees or students of the Title IX recipient to use an individual’s pronouns or honorifics,” the lawsuit said.
Attorneys general in more than two dozen Republican Party-led states have filed at least seven legal challenges to the Biden administration’s new policies.
On Monday, a federal judge in Kentucky temporarily blocked the new Title IX rule in Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia.
U.S. District Judge Danny C. Reeves called the scheme “arbitrary in the truest sense of the word” in granting the preliminary injunction.
Earlier this month, a federal judge in Louisiana temporarily blocked the new rule from taking effect in Idaho, Louisiana, Mississippi and Montana.
U.S. District Judge Terry A. Doughty called the new rule an “abuse of power” and a “threat to democracy,” ruling that the Department of Education had overstepped its authority.
