Utah will ignore Biden’s Title IX protections for trans students, GOP lawmakers vote

“If I’m being completely candid here, we don’t want people using [Title IX] as an excuse to ignore the state laws because they don’t like our state law,” Rep. Kera Birkeland said.

With federal funding for public schools in the balance, Utah lawmakers voted Wednesday to instruct state entities to ignore an expansion of Title IX under President Joe Biden that offers protections for transgender students.

Around a hundred protesters — many wrapped in transgender flags — chanted “vote no” outside the doors of the Utah House chamber as representatives convened before voting to adopt the pair of resolutions.

Nearly all Republicans in both the House and the Senate voted to pass the two resolutions rejecting the new Title IX measures. The only exception was West Valley City Republican Sen. Daniel Thatcher, who voted with Democrats against the legislation.

Utah is one of more than two dozen GOP-led states suing the Biden administration over the Title IX expansion in an attempt to keep the rules from being implemented Aug. 1. While Utah’s case has not yet been heard, federal judges in two of the cases have blocked the regulations, leaving them on hold in 10 states.

Title IX, which was passed in 1972, prohibits sex-based discrimination in education programs that accept federal funding.

The new rules from the U.S. Department of Education, which take effect in August, aim to clarify what steps schools must take to shield pregnant people from discrimination, and adds measures that extend anti-discrimination and anti-harassment provisions to gender identity and sexual orientation.

According to one of two resolutions that legislators approved along party lines during the special session, those rules conflict with several state laws — including a series of laws passed in recent years that impose restrictions on trans people.

“If I’m being completely candid here, we don’t want people using [Title IX] as an excuse to ignore the state laws because they don’t like our state law,” Morgan Republican Rep. Kera Birkeland, who sponsored one of the resolutions, said in a Business and Labor Interim Committee hearing ahead of the vote. “We want to make it clear that we have a state law that will be enforced in our schools.”

Among the state regulations at issue are a law that bars trans girls from competing in school sports unless a state-appointed eligibility commission gives them the go-ahead and a months-old law that restricts transgender people from using bathrooms or locker rooms that align with their gender identity in government buildings.

Both of those laws were also introduced by Birkeland. During debate over the bathroom ban, passed during the first two weeks of this year’s legislative session, The Salt Lake Tribune identified multiple instances of Republican lawmakers citing false information to support its passage.

The Utah auditor, who is charged with fielding reports of violations of the law, has received over 12,000 bogus complaints. His office has so far identified five “possible good-faith efforts to report violations, and it announced Wednesday that it was “unable to substantiate” any.

“I’ve heard so many folks say they love our transgender teens, and I do believe it,” Salt Lake City Democratic Sen. Jen Plumb, whose child is transgender, said on the Senate floor. “If the kind of love you have causes kids to not want to be alive there’s something missing there.”

Others include a law meant to “preserve students’ rights to free expression” on college campuses — including what gender pronouns they use when referring to classmates — and a law that forbids “the use of public funds for abortion services.”

(Jeff Parrott | The Salt Lake Tribune) Activists in support of transgender rights protest at the Utah Capital as lawmakers are called into a special legislative session on June 19, 2024.

Abortion is currently legal up to 18 weeks in Utah, with a near-total ban in front of the Utah Supreme Court, but has observed a law that keeps public funds from being used for abortions since 2004 — similar to the 1977 federal Hyde Amendment.

When asked, state lawmakers could not provide clear answers as to how the new rules impact Utah’s abortion laws. Birkeland said on the House floor that she interprets the rules as requiring state educational entities to offer abortion care as part of their accommodations for pregnant people.

Initially, when asked about the instances in which the rules might route Utah funds toward abortion services, House Speaker Mike Schultz told a reporter from The Tribune that “I don’t think that accusation has been made.”

Upon clarification that the concern is included in one of the resolutions, he said he worried schools would have to offer parental leave to employees who have an abortion.

“Since 1975, the Title IX regulations have required that recipients not discriminate based on pregnancy or related conditions, including childbirth, termination of pregnancy, and recovery,” a Department of Education summary of the new rules says.

The updated rules, it says, clarify that recipients of federal funding must protect students, employees and applicants from such discrimination “by providing reasonable modifications for students, reasonable break time for employees for lactation and a clean, private lactation space for both students and employees.”

The Legislature first considered “Joint Resolution — Legislative Findings on State Sovereignty in Regard to Title IX,” which adopts the view that the Title IX expansion compromises the “health, safety, and welfare of ... Utah residents” and “infringes upon [the state’s] authority and responsibility” to protect them.

Then, taking action on that, it voted on “Concurrent Resolution — directives to Government Officers Under the Utah Constitutional Sovereignty Act in Regard to Title IX.”

That resolution says “the Legislature of the state of Utah, the Governor concurring therein … [directs] government officers, as of the date when the New Regulations take effect, to comply with and enforce … Utah laws, as amended, and neither enforce nor assist in the enforcement of any provision of the New Regulations.”

Government officers, under the resolution, include elected officials, government appointees — such as those sitting on boards or commissions — and any state employees and volunteers, in both K-12 schools and higher education institutions.

All of the public debate over the pieces of legislation happened over the course of one day — less than one week before Utah’s primary elections — with only one opportunity for public comment.

(Jeff Parrott | The Salt Lake Tribune) Activists in support of transgender rights protest at the Utah Capital as lawmakers are called into a special legislative session on June 19, 2024.

New Title IX rules, the joint resolution alleges, “force Utah’s public education system and system of higher education to choose between following Utah law or a federal directive that politicizes education by compelling compliance or risk the loss of federal funds for programs and activities.”

“The notion that Title IX forces schools to allow males to compete against females or access women’s private spaces denies the identities of transgender youth and is overly simplistic,” House Democrats said in a statement. “Transgender youth do not pose a threat to women or girls. They are merely navigating life like all other kids.”

The statement continued, “Unlike their peers, however, transgender kids must continue to survive in a place where their elected officials continue to use them as a tool for political gain. The Legislature should not discriminate nor create unnecessary challenges in their lives, as they wouldn’t for others.”

The U.S. Department of Education has estimated that in fiscal 2025 it will send more than $2.3 billion in federal funds to Utah. A cut in that money would be most devastating for low income and rural school districts.

In the Ogden School District, for example, where nearly all schools are categorized as serving students with high poverty rates, federal funds comprise 15% of its fiscal 2025 draft budget. Almost 22% of the San Juan School District’s draft budget for 2025 is made up of federal funds.

The Utah State Board of Education requested earlier this month that the Legislature “consider the application” of a new state law that would allow public schools to circumvent federal laws, including “potential indemnification” of public education agencies.

The board also approved $50,000 to hire an attorney to evaluate “how state law is out of compliance with federal law in light of the new Title IX regulations,” and an additional $50,000 to contract with an independent auditor to identify all federal funds state schools receive and analyze how much it would cost the state to comply with the new Title IX rules.

A spokesperson from USBE told The Tribune that despite legislators’ directive, the state school board, at this point, plans to move forward with the study and attorney evaluation. While there is a risk of losing federal funding, USBE officials said they don’t think that’s likely.

“The primary means of enforcing compliance with Title IX is through voluntary agreements with the recipients (we are considered a ‘recipient’ by the Department of Education), and that fund suspension or termination is a means of last resort,” said Sharon Turner, director of public affairs for the USBE.

“I am not aware of any state incurring a percentage loss of funding due to noncompliance with Title IX or any other Title for this matter,” Turner said. “We will always follow the process and ensure full transparency so that if it were to ever come to a loss or reduction of funding we will adjust accordingly and together.”

Schultz and Senate President Stuart Adams told reporters earlier in the day that the Legislature does not have a plan for how to make up for funding shortfalls if the federal government pulls its money.

“We’ll deal with that issue if it comes,” Adams said, with Schultz adding, “Kids come before money.”

‘Stigmatizing those kids who already feel different’

Connor Morrison, an elementary teacher at a charter school, called lawmakers’ decision “sad.”

“The legislature [is] taking specific action against such a minority of children,” Morrison said, who was among the roughly hundred protesters at the Capitol on Wednesday. “It’s sad and needless that the state finds a priority in what, in my eyes, is further stigmatizing those kids who already feel different.”

Although the students are young, the elementary school teacher said, there are a few who identify differently.

“These kids are so open-hearted and accepting that I wish this wasn’t a prerogative of lawmakers,” said Morrison,” “because if they were really in that classroom, they would see that the little student who wants to dress differently, and who might not fit in the bathroom that his birth certificate says he has to go in, is loved and respected by all the other kids in the classroom.”

Morrison said lawmakers are teaching Utah children to “hate”

“[They’re] going to grow up in a state that tells them they have to treat certain students differently,” Morrison said.

One of the state’s largest LGBTQ+ advocacy organizations, Equality Utah, condemned the move.

“Today the Utah Legislature invoked a new and constitutionally suspect law, which will unnecessarily invite litigation, all to once again focus the full weight and strength of the Utah government on the most vulnerable of populations: transgender children,” read a statement after the vote.

The organization continued, “It is high time that Utah starts focusing its resources on helping our children achieve success, rather than using them as pawns in order to score political points.”

Lawmakers frequently cited safety for girls in intimate spaces like bathrooms and changing rooms as one of the reasons for directing public schools to ignore the Biden administration’s Title IX protections, Morrison said school administrators are well-equipped to ensure student safety.

“They’re more than capable of keeping their students feeling safe and respected and accommodating their needs … without the state stepping in,” Morrison said.