As Republican elected officials trumpet as a victory for Wyoming the recent court injunction halting implementation of new Title IX rules, school districts and educators are grappling with uncertainties of how to proceed.
“Everybody’s confused right now,” said Brian Farmer, executive director at Wyoming School Boards Association.
The confusion within schools underscores how complicated it is to interpret and comply with Title IX — a 50-year-old law that prohibits sex discrimination in educational programs that receive federal funding. The high-profile political spat has muddied the timeline and directives for districts and employees whose job is to align with the federal law.
“From my perspective, the big challenge [for schools] right now … is just we don’t know what to do,” said University of Wyoming Title IX Coordinator Jim Osborn. “We’re caught between a set of new regulations, legal proceedings and an impending deadline.”
The recent Title IX issue has been oversimplified to fit certain political interests, Farmer said. Most of the political sparring has framed the issue as one of transgender and LBGTQ+ protections versus parental and privacy rights. On the ground in Wyoming schools, meanwhile, teachers, compliance officers and board members feel they have been thrust into limbo. That’s because districts have made substantial efforts to prepare for the new Title IX rules rewrite, which goes into effect Aug. 1. But the preliminary injunction released July 3 throws that implementation date into doubt.
“It is disheartening the way that politicians have oversimplified all of this and made much of their jousting in the courts,” Farmer said. “Because it is so much deeper than anything really that’s been addressed in the media or that the politicians make reference to.”
Politicizing Title IX
The U.S. Department of Education in April released a rewrite of Title IX rules that it promised would “restore and strengthen vital protections for students.” The department emphasized that the rewrite would promote school accountability, offer protection against discrimination for pregnancy-related conditions and prohibit discrimination and harassment based on sexual orientation, gender identity and sex characteristics.
Wyoming Superintendent of Public Instruction Megan Degenfelder — along with conservative and Christian advocates nationwide — expressed dismay.
“I am outraged by the Biden Administration’s action to effectively repeal Title IX protections for women in America,” Republican Degenfelder said in a statement shortly after the rewrite was released. “These rules fully open the door to biological males abusing rights afforded to women by Congress in Title IX, and they also trample on parental rights by requiring K-12 schools to accept a child’s gender identity regardless of biological sex without parental input.”
Wyoming joined a coalition of states and private parties in filing a May lawsuit opposing the new rules. The lawsuit argued the new rules are contrary to the core principles of Title IX, compromise safety and privacy and deprive female athletes of opportunities. The lawsuit accuses the federal education department of ignoring Title IX’s true mission in an “attempt to rewrite the rules entirely to institutionalize the left-wing fad of transgender ideology.”
In a statement announcing the lawsuit, Gov. Mark Gordon called the rewrite “yet another instance of federal overreach, seeking to impose a new interpretation on a longstanding law.”
The ACLU of Wyoming, meanwhile, dismissed the lawsuit as “political grandstanding and just the latest attempt to erase transgender people from society.”
“This intolerance against a marginalized group of people is a distraction from our state’s real needs and hurts us all,” Libby Skarin, acting executive director for the ACLU of Wyoming, said in a statement.
In a June 12 update, Degenfelder said she expected the court to overrule at least part of the rules and therefore recommended Wyoming schools continue under their current Title IX policies and practices.
Then on July 3, the U.S. District Court for Kansas granted a preliminary injunction barring enforcement of the Biden administration’s rewrite of Title IX while the lawsuit continues in court. The injunction applies to Kansas, Utah, Alaska and Wyoming.
Degenfelder and Gordon both celebrated the news.
‘Massive misunderstanding’
Less than a week after the preliminary injunction was released, Wyoming School Boards Association Director Farmer attended a webinar led by U.S. Department of Education Assistant Secretary Catherine Lhamon, who oversees Title IX enforcement.
He was among many education officials trying to parse out what the court maneuverings mean for schools.
When Title IX was passed in 1972, it stated that no person, “on the basis of sex,” shall be excluded from participation, denied benefits or be subjected to discrimination under any education program or activity receiving federal funding.
School districts, universities and athletic programs have long employed Title IX compliance officers to ensure they are following requirements. But presidential administrations occasionally implement rule rewrites.
The last one occurred in 2020.
“So in 2021 we did a lot of training of staff in Wyoming to update our policies to be ready for the new rules that took effect then,” Farmer said. “So it was a massive effort to ensure folks would be compliant with that set of rules.”
Four years later, a new set of rules emerged. The newest rules, Farmer said, were “by and large” written to adjust or recalibrate the 2020 ones. A lot of what was in the rewrite were small tweaks to policy, including policy that would benefit Wyoming educators, he said.
“There’s a large section of those rules that are just changes to process that are actually beneficial to school districts,” he said, “and have nothing to do with the political issues that politicians are getting out of sorts with.”
For example, he said, there’s a rule in the 2020 rewrite that mandates each district has a Title IX coordinator, investigator and decision maker — three separate people who have no conflicts or preconceived notions of cases.
“So imagine if you will, Meeteetsee, Wyoming, or Dubois or Tensleep, finding three individuals within the school system that aren’t going to have connections to kids involved in the process,” he said. “That becomes really challenging” and often leads to districts seeking outside help.
The rules revision had a provision that would have ameliorated that. “It’s unfortunate that the court enjoined the entire rule, when so much of the rule is actually beneficial,” Farmer said.
In addition, he said, during the webinar Assistant Secretary Lhamon “made abundantly clear that LGBTQ students are protected under the 2020 rules.” He also noted that the new rules rewrite is not about sports, facilities and accommodations.
“I think there’s massive misunderstanding by politicians of what the rules in place were, what the 2024 rules did, and what their legal challenges may or may not do,” Farmer said.
Safeguards still in place
Updating policies entails a significant amount of work for districts and institutions, UW Title IX Coordinator Osborn said. “For most institutions, changing institution- or district- or university-wide policy is not a small feat,” he said. “There are a lot of procedural hoops” — including putting draft changes out for public review and approval.
Compliance and school staff experienced that firsthand in 2020, he said. This time around, the task presented another daunting challenge, with a relatively short timeline of 100 days.
Add the latest twist of an injunction — particularly one like this that applies only to certain states — “and it creates a lot of confusion,” Osborn said.
The university had already identified policy changes it wanted to make before the draft regulations were put out, he said, most in service of cleaning up language and streamlining. In the wake of the injunction, he said, UW is keeping some old policy in place to align with the 2020 regulations. Many institutions are doing that while having draft changes ready in case the injunction is lifted, he said.
But “because we don’t know what could happen or the timeline that could happen in, a lot of schools don’t know how long they’re going to have to implement that,” he said.
What Osborn’s office is focusing on, he said, is reminding folks that UW has strong protections in place.
“Regardless of which regulations are still in control and still in effect when the semester starts, our policies will still prohibit sexual assault, dating and domestic violence, stalking, sexual harassment,” Osborn said. “Our policies will still continue.”
On hold
In preparation for the Aug. 1 effective date of the federal rules rewrite, the Wyoming School Boards Association had drafted a model policy that its member districts could use to effectuate the new rules.
Now that the preliminary injunction is in place, Farmer said, “we’ve advised them to put them on hold” until a final court decision is made.
But there is a lot of uncertainty about what’s next.
“And I guess the hard part for schools is, we don’t know when that decision is going to happen,” Farmer said. If the court in late July makes a final ruling, he said, “then hopefully the court at least provides some clarity around implementation” to resolve any conflict between federal law and state adoption policies.
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