WASHINGTON — Republican governors across the Deep South are among 25 governors who signed on to a letter urging U.S. Secretary of Education Miguel A. Cardona to withdraw a proposed Title IX update while state lawsuits are pending.
Georgia Gov. Brian Kemp, Alabama Gov. Kay Ivey, Texas Gov. Greg Abbott and Mississippi Gov. Tate Reeves have signed laws restricting students from participating on sports teams that align with their gender identity, which the proposed Title IX update would challenge. Lawsuits have been filed by groups challenging the laws in the majority of those states.
Title IX has been in place for more than 50 years and bans sex discrimination in athletics in any educational institution — K-12 schools and colleges and universities — or programs that receive federal funding.
As reported by The Times in Sept. 2022, Alabama education representatives have already been attempting to look at ways to adhere to the USDOE’s first round of proposed Title IX policy updates announced on June 23, 2022, the 50th Anniversary of Title IX.
At the time, the USDOE said the proposal was not intended to apply to athletics, but followed through on their promise to issue a separate policy update when it announced a new proposal last month.
The proposed update would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity. Noncompliance of the regulations would result in removing federal funding from the education entity.
In May, Alabama Attorney General Steve Marshall received guidance from the United States Department of Agriculture informing him that Alabama schools were at risk of losing its federal funding, including SNAP funding, that provides free and reduced lunches. A lawsuit against the USDA and the Biden administration was filed by Marshall — along with 21 other attorneys general — and is currently awaiting hearing before the Federal Middle District Court of Tennessee.
In the Cullman County School system, 67.2 percent of the students benefit from free or reduced lunches.
According to the city school’s FY 2023 budget, the district received $9,043,756 in federal funding making up 18.43 percent of the annual operating budget. During the recent budget proposal meeting, CCS Chief Financial Officer James Brumley added that salaries of 17.73 teachers were supplied with federal funding.
“If we lost federal dollars, we would lose 17.73 teachers or we would need to make that up with local funds,” Brumley said.
In addition to this, if the USDOE found that adherence to Act 2022-90 resulted in statewide non-compliance with Title IX, a portion of state supplied funding also has the potential to be withheld.
“Over the past couple of years we’ve received a significant amount of federal funds. Some stay at the state level to provide statewide activities for the LEA’s (Local Education Authority) for the schools, and then the majority of it goes directly to the schools. We eventually could be at risk of the Feds withholding the funds or taking back the funds, or paying back the funds. That’s for any funding, any federal funding sources,” Killingsworth said.
According to CCS, $22,824,367 in state provided funding makes up 46.52 percent of the FY 2023 budget, and supplies the salaries of 184.69 teachers, 6.5 librarians, 4.5 counselors, and 9.75 administrators.
For the CCBOE, 541.62 teachers, 23.5 librarians, 23 counselors, 37 administrators, and 168.56 non-certified support staff have their salaries supplied from state funding. Williams said that she was unaware of any efforts being made by the state to offset these funds in the event of its loss.
AG Marshall responded in a op-ed sent to The Times, also in Sept. 2022, stating “Alabama’s sovereignty is not for sale.”
“The Biden administration’s actions seeking to impose the left’s extremist “gender identity” agenda on schoolchildren are illegal and unconstitutional. But even if they were not, and federal funding was at risk, the duty of state leaders is not to dollars. We are meant to serve the interests of the people of Alabama — and the people of Alabama have clearly spoken, through their elected representatives, that they do not wish for sexual politics to be thrust on their children by far-left radicals in Washington.
“While I hope to preserve every penny of federal funding being threatened by this administration, Alabama’s sovereignty is not for sale.”
However, the 25 Republican governors argue that the U.S. Department of Education does not have the authority to unilaterally rewrite or enact such a change or create a new category for “gender identity.”
“Gender identity is not mentioned anywhere in Title IX,” the letter states. “Federal courts have held that to interpret ‘sex’ within the meaning of Title IX … look to the ordinary meaning of the word when it was enacted in 1972. … Indeed the Supreme Court recognized that biological sex is an ‘immutable characteristic’ determined at birth.”
The USDOE have cited the 2020 Supreme Court ruling of Bostock v. Clayton County which ruled in favor of the plaintiff, Gerald Bostock, who said he was unlawfully terminated from his job after expressing interest in a gay softball league.
Justice Neil Gorsuch delivered the opinion of the court “… it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex … take an employer who fires a transgender person who was identified as a male at birth, but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
The governors said the update would generate confusion, referencing an American Academy of Pediatrics report that stated, “gender identity can [be] fluid, shifting in different contexts.”
“The Department’s proposed regulation would attempt to coerce compliance with an uncertain, fluid and completely subjective standard that is based on a highly-politicized gender ideology,” the letter states. “Compelling a subjective, athlete-by-athlete analysis controlled by a student’s self-identified ‘gender identity’ enforced under threat of Department retribution affords no clarity. It does the opposite.”
The governors argue that such a regulation would allow males to “steal achievements” from females in sports by allowing biological boys who identify as female (transgender girls) to compete on girls’ sports teams.
The proposed rule would take away “fairness” in women sports, the letter states, further arguing that courts and “common sense” have recognized that the average physiological difference in males would displace females if competing against each other.
The U.S. Department of Education states that participation in school athletics is an important component of education and “provides valuable physical, social, academic and mental health benefits to students.”
According to the proposal, in some instances, such as in competitive high school and college athletic environments, some schools would be able to adopt policies that limit transgender students’ participation.
Under the proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity.
Schools would have the flexibility to develop team eligibility criteria, such as ensuring fairness in competition or preventing sports-related injury. The criteria would have to account for the sport, level of competition and grade or education level.
Schools seeking to restrict students from participating consistent with their gender identity must take into account the nature of the sports to which the restriction would apply, as sports vary in the skills, and the talent they require. The proposal notes that schools also offer teams at lower levels of competition, such as intramural or junior varsity teams, that allow all or most interested students to participate.
The Department’s proposed Title IX regulation will be open for public comment for 30 days from the date of publication in the Federal Register at www.federalregister.gov.
CNHI reporter Patrick Camp contributed to this story.
