With more than a hundred protesters outside of the Utah House chambers, lawmakers voted to go against the Biden administration's expansion of Title IX protections. The new federal rules cover pregnant, transgender and LGBTQ+ students.
The administration’s decision to diversify Title IX goes against a handful of laws the Utah Legislature has approved in recent years. Most recently, the governor signed a bill that prohibits transgender students from using the bathroom or locker room that aligns with their gender identity.
In the first test of the new Utah Constitutional Sovereignty Act, the Legislature passed, along party lines, two resolutions in a special session related to the U.S. Department of Education Title IX extensions that go into effect on Aug 1.
“I want to point out that this was the Biden administration, unelected bureaucrats, that put this rule in place,” said House Speaker Mike Schultz. “IX was a great piece of legislation passed in 1972 meant to protect women and that's what we're upholding in the state of Utah.”
Compel compliance with state laws
HCR301, sponsored by Republican Rep. Kera Birkeland, instructs state agencies to “comply with Utah laws where there is a conflict with the new regulations adopted under Title IX.”
In a committee hearing, Birkeland called the resolution “simple” in that it clears up any confusion government entities may have on which law they should follow.
“It just compels and tells the government entities to follow state law,” Birkeland said.
“We don't want people using it as an excuse to ignore the state laws because they don't like our state law. We want to make it clear that we have a state law that will be enforced in our schools. And the fines can still be imposed if you're violating state law.”
On the Senate floor, there was concern that the resolution violates the Supremacy Clause of the U.S. Constitution, which states federal law trumps state law. Republican Sen. Curt Bramble argued the 10th Amendment outweighs and grants states the power to disregard the federal government if there is overreach.
“Now, that doesn't necessarily conflict with the Supremacy Clause of the Constitution. But it is in question.” Bramble also argued the Biden administration is the entity “overstepping” and not Congress.
In Louisiana, a U.S. District Court judge blocked the Title IX provisions from going into effect in Louisiana, Mississippi, Montana and Idaho. A Kentucky judge blocked it in Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia. Twenty-six states in all, including Utah, have sued.
The fact the expansions are already being challenged in court is a reason why Democratic Sen. Nate Blouin believes the state shouldn’t handle the issue inside the Capitol.
“It seems to me like we are opening ourselves up to some really, potentially expensive lawsuits or losses of funding, where we could just be, letting the process play out, as it has for centuries in this country,” he said.
“Constitutes an overreach”
HJR301, sponsored by Republican Rep. Neil Walter, claims the Title IX expansion “constitutes an overreach” of federal authority that “violates Utah's rights and interests” to protect the “health, safety, and welfare of, and to promote the prosperity of Utah residents.” They do so by going against state laws already on the books.
“The recent actions of the U.S. Department of Education to rewrite many of the IX directives have created tremendous cause for concern,” he said on the House floor.
Walter said the Title IX provisions violate HB11, a law currently on hold by the courts, that restricts transgender athletes from participating in girls’ and women’s sports. However, the updated standards don’t address transgender athletes.
He added it is also in conflict with HB257, which has been coined the bathroom bill. His other claim was that it may force the state to fund abortion-related health care, which is not required in the new regulations even though a public or private entity is allowed to financially assist if they would like to. The Title IX provisions state that it “prohibits discrimination against any person based on their seeking, obtaining, or having experienced termination of pregnancy,”
The majority of the House floor debate, however, centered around gender identity and perceived federal overreach.
Democratic Rep. Sahara Hayes, the only openly LGBTQ+ lawmaker, expressed concern about LGBTQ+ students not feeling safe in schools and their comments to the U.S. Department of Education around their experiences with harassment that “leave students in constant fear, cause social anxiety and stress disorders, and too frequently lead to suicidality.”
“Aren't these kids just as worthy of health, safety, and well-being? These are the kids that we are trying to fight against right now, that we're doing battle with the federal government on? This ruling is an attempt to protect these kids from discrimination. That is a very real threat in their lives. And we might not know them, we might not understand them, but they are just as worthy of this protection.”
On the Senate floor, sponsor Sen. Scott Sandall, architect of the Utah Constitutional Sovereignty Act, said he’s aware the state is in uncharted territory when it comes to enacting the bill that knowingly goes against federal guidance. However, he believes this is a noble cause.
“We know that we're breaking some original ground here. No other state in the nation that we know of has really tried this approach, but I believe it's a sound approach, and I believe it's one that we can use very judiciously. And in this case, we have used [it] in a very judicious manner,” he said. “We will direct, upon passage of these two resolutions, our state agencies to comply with state law until and at some future time the courts would rule otherwise.”
Republican Sen. Daniel Thatcher was the sole ‘no’ vote from the GOP in both chambers. His concerns around the resolution stemmed from the possible loss of federal education money. Roughly 10% of Utah’s education funding comes from the federal government.
Since the U.S. Department of Education doesn’t have constitutional authority, Thatcher said they can’t force states to comply with their regulations and “that's why they use strings with their funding.”
“I think that this very seriously places in jeopardy the $696 million that the federal government provides for nutrition programs, for Title I, for career and technical education and especially for special ed,” Thatcher said.
“So while I do believe we have the authority to do this, and while I do believe that they do not have constitutional leverage to force us, I do believe that that lack of constitutional leverage will compel them to threaten funding.”
Senate President Stuart Adams agrees there are “risks” at play for enforcing the state sovereignty act, he’s “also concerned about kids.”
“If you believe in state rights, you got to stand up for something. We're concerned about all of that, but we actually think we're on solid ground. We actually think the courts will support us.”
He added that the state has managed its finances “extremely well.”
If funding was revoked, Adams said “we've got lots of money that we can put in reserve and we'll deal with that issue as it comes.”
