Can Utah legally ignore Biden’s Title IX expansion aimed at protecting trans students?

State lawmakers are using a bill they passed earlier this year giving themselves permission to disregard federal laws and regulations.

When state and federal laws run up against each other, it’s common for the government authorities to battle it out in court. But does Utah have the power to ignore new federal Title IX directives, as the Legislature voted to do on Wednesday, before the state’s case challenging them has its day in court?

With the new rules’ Aug. 1 effective date approaching, the Beehive State may find out. And according to a legal analysis obtained by The Salt Lake Tribune earlier this year, the effort could run into constitutional roadblocks.

Title IX, which was passed in 1972, prohibits sex-based discrimination in education programs that accept federal funding. The expanded rules from the U.S. Department of Education 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.

Legislators are making the move to disregard the rules under a bill passed in January, “Utah Constitutional Sovereignty Act,” that created a process by which the legislative branch can order other state entities to ignore federal laws and regulations in favor of adhering to those passed by state lawmakers.

If lawmakers believe a federal action would harm the state, they can introduce a resolution opposing the mandate. That resolution must pass with a two-thirds vote in the Utah House and Senate and be signed by the governor in order to give a directive not to implement federal rules until a court orders the state to comply.

This is the Legislature’s first effort to use that newly created power.

“As we as we push back on the federal government, we think that we’re within our states’ rights,” Utah Senate President Stuart Adams told reporters Wednesday. “And we do believe we’re on solid ground even though it is cutting edge.”

A January analysis of the bill’s legality conducted by the Office of Legislative Research and General Counsel, which was obtained by The Tribune, warned the proposal could run into constitutional challenges if lawmakers deploy the process, depending on the circumstances.

The U.S. Constitution’s Supremacy Clause says federal law usually takes precedence over state law.

But the state may be able to successfully dispute the federal government’s authority here under the “anti-commandeering” doctrine in the 10th Amendment, which prevents the federal government from requiring states to enforce regulations that conflict with states’ reserved powers.

“States’ rights mean something,” House Speaker Mike Schultz said Wednesday, “and the overreach from the Biden administration and the federal government has gotten out of control.”

(Trent Nelson | The Salt Lake Tribune) Utah Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, talk with reporters during a news conference at the Utah Capitol in Salt Lake City on Thursday, Feb. 15, 2024.

Regulating education is generally considered the right of states, but using federal money in schools gives the U.S. Department of Education a say in how those institutions are run. If its conditions aren’t met, the agency has the ability to withhold some of those funds.

Among the most notable instances of the federal government threatening to cut off education funding came after the U.S. Supreme Court ruled in Brown v. Board of Education in 1954 that racial segregation in public schools is unconstitutional. Although compliance in southern states was slow at first, it sped up as the federal government increased the money it was offering for schools in the 1960s.

Some Republican states, like Tennessee, have in recent years floated the idea of rejecting federal education funding altogether to do things their own way. A bill to reject federal money for schools was introduced in Oklahoma in 2023, but never came up for a vote.

The Department of Education has estimated that in fiscal 2025 it will send more than $2.3 billion to Utah. A cut in that money would be most devastating for low income and rural school districts, where as much as a fifth of their budget comes from Washington.

Utah is one of 26 GOP-led states suing the Biden administration over the Title IX expansion in an attempt to keep the rules from being implemented and endangering that money. 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.