As state lawmakers prepared for a special session to consider the impacts of new federal Title IX regulations, state education leaders met with a legislative commission urging the Utah Legislature to provide clarity over an apparent conflict between the regulations and a public school restrooms bill.
HB257 requires K-12 students to use public school restrooms that match their sex designated at birth, restricting transgender access to “privacy spaces” in public schools and other publicly-owned buildings.
The Department of Education’s new Title IX rules, set to take effect on Aug. 1, change the definition of sex discrimination to include gender identity and sexual orientation.
Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.
Utah State Board of Education Chairman Jim Moss, addressing the Legislature’s Federalism Commission on Tuesday, said the state school board recently voted 14-0 to ask state lawmakers to consider applying the Utah Constitutional Sovereignty Act to the new Title IX regulations. Board member Sarah Reale was absent.
Under the act, the Utah Legislature could “in appropriate circumstances, prohibit a government officer from enforcing or assisting in the enforcement of the federal directive within the state if it violates the principle of state sovereignty...or a right reserved to the state by the 10th Amendment or in order to provide for the health, safety and welfare and promote the prosperity of the state’s inhabitants,” Moss said.
“We know very well that federal law is typically supreme law of the land, but the state Sovereignty Act was set up to effectively set up a challenge (if) actions of a particular bureaucratic agency might exceed its power. That could only be ultimately resolved by court, but that’s what the act was set up to do. So we’ve asked for the consideration of whether that might apply here, and that will be on the special session call tomorrow,” Moss said.
Federalism Commission House Chairman Keven Stratton, R-Orem, said he appreciated the board’s actions.
“I was very grateful for the unanimous decision, because I know there’s a broad spectrum of ideological perspectives on the board,” Stratton said.
The state school board has also allocated $50,000 to hire a contract attorney to help state assistant attorneys general assigned to the board to evaluate “if and how” state law is out of compliance 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 chairwoman Jennie Earl told commission members that schools want guidance on how to be in legal compliance.
“With the August 1 deadline coming forward, there is confusion out there,” she said.
Rep. Gay Lynn Bennion, D-Cottonwood Heights, asked Moss and Earl if prior to the Legislature’s General Session whether schools around the state had raised concerns about students using restrooms corresponding with their gender identity.
“I’ve been on the board for about three and a half years, so I’ve heard those concerns throughout my time,” Moss said.
He continued, “You’ve got somebody who says, identify this way, this my sexual orientation. So how do you accommodate that person while protecting others? That’s been a challenge throughout my time on the board.”
Moss said Utah school districts and charter schools have expressed concern about how to proceed.
“There’s state law that very clearly says, ‘Do this in order to protect girls in separate space facilities and there’s 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. Title IX regulations go into effect August 1. So currently, we’ve explained to our schools we’re under the state law requirements,” he said.
Meanwhile, Utah has joined three other GOP-led states and four private entities in a lawsuit that challenges 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, K.R.; 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 holding that the final rule is unlawful and that plaintiff states are not bound by it.
It also seeks declarative judgement that does not require “Title IX recipient’s employees or students to use an individual’s preferred pronouns or honorifics,” the lawsuit states.
Attorneys general in more than 20 GOP-led states have filed at least seven legal challenges to the new Biden administration policy.
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 referred to the regulation as “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.
CORRECTION: An earlier version of this story incorrectly stated the state school board voted unanimously asked state lawmakers to apply SB57, the Utah Constitutional Sovereignty Act, to the new Title IX regulations. The board asked legislative leaders to consider applying the act to the federal regulations.