Red states set stage for federal showdown over transgender student protections

A growing number of Republican-led states are pledging to reject new Title IX rules finalized this month by the Education Department, teeing up a potential legal battle with the White House over bolstered protections for transgender students.

Top education officials in Florida, Louisiana, Wyoming, South Carolina and Oklahoma have publicly rebuked the Biden administration’s new Title IX regulations that add protections for transgender students, arguing that the new policies roll back the rights of women and girls by expanding the landmark civil rights law’s definition of sex discrimination to include gender identity.

In a letter this week to district boards and superintendents, South Carolina Education Superintendent Ellen Weaver, a Republican, called the new rules “deeply troubling” and advised schools to disregard them. Cade Brumley, Louisiana’s education chief, similarly recommended that schools ignore the updated rules, which he said likely violate state and federal law.

Laws passed in more than a dozen Republican-led states prevent transgender students from using school restrooms and locker rooms that match their gender identity or allow teachers and students to disregard a trans person’s name and pronouns. Adhering to such laws may violate the new Title IX regulations, a senior administration official said, if doing so creates a hostile environment.

“It is inevitable that there will be a legal challenge to the new rules,” Brumley, who is also a Republican, wrote in a letter to local school officials this month. The state is weighing its options when it comes to challenging the new regulations, Brumley told The Hill, and a lawsuit is not off the table.

Leading conservative organizations, including the Christian legal powerhouse Alliance Defending Freedom (ADF), have explicitly threatened to sue over the new regulations, which were finalized this month after more than a year of delays.

The new rules, said ADF legal counsel Rachel Rouleau, will “turn back the clock” on Title IX, which has protected students, faculty and staff at schools receiving government funding from sex-based discrimination for more than 50 years.

On Thursday, Florida Gov. Ron DeSantis (R) said the state plans to “fight back” against the new regulations, which he said undermine the right of parents to control their children’s education. Florida’s Parental Rights in Education Act, signed by DeSantis in 2021 and expanded late last year, prevents teachers from addressing sexuality and gender identity in the classroom.

DeSantis on Thursday did not specify how the state intends to resist the federal government’s directive to implement the changes to Title IX by Aug. 1. His office declined to comment on any specific actions the governor may take.

In an emailed statement, an Education Department spokesperson said public schools across the country are required by law to update their policies to comply with the new regulations, regardless of whether officials in their state agree with them. Doing otherwise may jeopardize federal education funding.

“As a condition of receiving federal funds, all federally-funded schools are obligated to comply with these final regulations,” they said.

The loss of federal education funding would be a significant blow to state education programs already struggling financially, but it may be a sacrifice worth making, said Tiffany Justice, co-founder of the conservative political organization Moms for Liberty.

State lawmakers have the power to reject money from the government on principle or for technical reasons. And in this case, seeking to skirt the administration’s new Title IX rules, state Republicans appear somewhat open to considering alternate funding for schools, Justice said, citing early conversations with conservative legislators.

Tennessee lawmakers last year briefly considered rejecting federal education funding, arguing that Washington’s involvement in the state’s schooling was “excessive.”

“Having the federal government hold money over your head in order to force you to do something that is against the fundamental rights of parents is wrong,” Justice said. “We’re asking legislators all over the country to consider not taking their funding.”

Moms for Liberty, founded in 2021 by Justice and Tina Descovich, has drawn national attention — and criticism — for its advocacy against school curricula and library books that address race and LGBTQ issues. Citing group members’ rhetoric against the LGBTQ community and work fighting pandemic safety protocols in schools, the Southern Poverty Law Center in 2022 named the organization an “extremist” group — a designation Justice and Descovich have rejected.

LGBTQ and civil rights groups denounced the recent crop of GOP-led campaigns to reject the Biden administration’s Title IX rules for transgender students, arguing that doing so will cause harm to all students.

“These MAGA politicians are threatening to put schools in an incredibly precarious position, encouraging them to violate federal civil rights law, potentially opening them up to costly lawsuits, and putting their federal funding at risk,” said Brandon Wolf, press secretary for the Human Rights Campaign, a national LGBTQ rights group. “Their theatrics could prove incredibly damaging to students.”

The Biden administration has yet to finalize a separate rule governing athletics eligibility. The proposal unveiled by the Education Department last April would prohibit schools from adopting policies that categorically ban transgender student-athletes from sports teams that match their gender identity.

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