Schools should consult lawyer about whether to follow new Title IX rules, Horne says

The Arizona Department of Education urged schools to consult their lawyers before following federal regulations that seek to expand sex-based discrimination protections to members of the LGBTQ+ community.

Those federal protections will require schools to let students access bathrooms and locker rooms that align with their gender identity regardless of biological sex. Courts have blocked the regulations from taking effect in 14 other states where lawsuits were pending, but Arizona was not among them.

Superintendent of Public Instruction Tom Horne said school leaders might consider delaying their implementation of the revised rules anyway. They are part of Title IX, the 1972 federal law prohibiting sex-based discrimination in educational programs that receive federal funding. The Biden administration updated Title IX in April to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. Those take effect Aug. 1.

If schools implement the updated rules now, however, and courts later overturn them, then “students may suffer damages,” he said.

“This is not legal advice. The Arizona Attorney General may disagree,” Horne said in a letter to district and charter school leaders. “We are a local control state, and it will be up to districts and charters to determine how to proceed in this situation.”

A spokesperson with the Attorney General’s Office declined to comment, saying their office “is not empowered to enforce Title IX” and cannot provide legal advice on the topic.

Horne: Arizona schools are ready to challenge new Title IX rules

Fourteen states have successfully sought injunctions blocking the new regulations from taking effect: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia and Wyoming.

Arizona could soon join them, according to Horne. He said a school district and charter school stand “ready to be plaintiff” in a case that could block the rules, at least temporarily, from taking effect in Arizona. Discussions are ongoing “with certain legal organizations,” he said.

A department spokesperson confirmed Dysart Unified School District and Challenger Basic charter school were the involved parties exploring a legal challenge. A Dysart Unified spokesperson said she had not heard about a potential lawsuit and was not immediately able to get a comment from district leaders. Challenger Basic’s director could not be reached for comment.

Horne has previously said he believes barring transgender girls from using women’s facilities or competing in girls' sports is less an LGBTQ+ rights issue than a matter of fairness and safety.

Last August, Horne strongly advised schools not to allow transgender girls to use girls’ restrooms and locker rooms. They could potentially violate indecent exposure laws and be subject to arrest , he said.

Horne reaffirmed that stance in his July letter to districts and charter schools, saying they should have unisex student bathrooms or the faculty bathroom should be used as such.

“That would preserve the dignity of biological boys who identify as girls. But if they were allowed in girls’ facilities, I thought parents might well remove the girls from the school and send them to another district, Charter School, or private school. So, this rule could significantly injure public education,” he said.

Horne also went to court last year over a lawsuit challenging Arizona’s ban on transgender girls competing in girls’ sports teams. The parents of two transgender girls named Horne as a defendant.

Horne argued the ban did not violate Title IX, which was “actually adopted to promote sex equality by permitting sex-separated sports,” and that cisgender girls could face “emotional injury, physical injury, and competitive disadvantage” if transgender girls competed on their teams. He said his basic legal argument for this case was similar to his position on bathroom and locker room use.

The judge approved an injunction allowing the girls to play on their preferred team while the case was weighed in court, according to the Associated Press.

Will schools ignore new Title IX laws?

Some schools already had begun asking legal questions before Horne’s greenlight.

The Dysart Unified governing board unanimously adopted a resolution earlier this month opposing the new Title IX rules as an “obtuse overreach” that criminalizes “innocent children” and “the people of the varying faiths that commonly and firmly believe in truth, such as a Creator of two distinct and wonderfully made sexes.” The resolution followed a nearly hourlong closed session at which the board received legal guidance on the matter.

Board President Dawn Densmore described the issue as a breach of the First Amendment because it requires school employees to refer to people by their preferred pronouns. Densmore said the district “cannot compel the speech of a student, employee, nor can we compel the religious or other deeply held beliefs of our students or employees that there are two sexes.”

The federal Education Department responded to First Amendment concerns in its 1,577-page rule-making explanation , stating that "nothing in the regulations requires or authorizes a recipient to violate anyone's First Amendment rights."

Dysart Unified’s resolution did not change district policy, however, which does consider sexual orientation and gender identity as protected classes against discrimination.

The governing board at Peoria Unified School District received a legal presentation on the new Title IX regulations in June. The board did not take action, nor could the district’s lawyer provide advice during the public meeting, but some members voiced varying degrees of concern over its potential impact. The board was to receive legal advice Thursday during a closed meeting.

A spokesperson for Mesa Public Schools, the state’s largest district, said its legal counsel was closely monitoring the developments surrounding Title IX but did not say whether the district was considering a delayed implementation of the new rules.

This article originally appeared on Arizona Republic: Schools should consult lawyer about whether to follow new Title IX rules, Horne says