Title IX prohibits sex discrimination in education programs or activities that receive federal funding.
The Biden administration rolled out new rules earlier this year, two years after first proposed. Among other things, they broaden the interpretation of Title IX to bar discrimination based on gender identity and sexual orientation. The rules don’t address transgender athletes participating in sports.
Right now, there’s confusion between the federal regulations scheduled to go into effect Aug. 1 and their compatibility with Utah laws. Possibly the most obvious example is the requirement that K-12 students use public school restrooms that match their sex assigned at birth. Utah isn’t the only state to regulate which bathrooms trans students can use.
The disconnect between the federal and state policy has already drawn one response. In May, Utah joined other states in suing the administration over the new rules. And now, the Utah State Board of Education is getting involved as well.
During a June 6 meeting, the board allocated $50,000 to hire a contract attorney to help state attorneys evaluate “if and how state law is out of compliance with federal law in light of the new Title IX regulations.” With August fast approaching they set a mid-July deadline.
Some board members seemed confident that “yes” will be the answer to the question of whether state law would be out of compliance.
Board members also said they’ve heard concerns and confusion from schools about what the new Title IX rules will mean for them. There was already confusion at the end of last school year over the bathroom restrictions. During previous discussions, board member Carol Lear brought up concerns about Title IX changing again with future administrations and called it a political football.
On top of the money authorized for the attorney, the board voted on another $50,000 to hire an independent auditor. It will be their job to determine how much federal money the board has received in recent years and how much they are spending to comply with federal laws.
It also “requested the Legislature consider the application of SB 57, Utah Constitutional Sovereignty Act, passed during the 2024 legislative session, to the Title IX regulations, including potential indemnification, if needed.”
The law, which remains untested, creates a process for lawmakers to ignore federal directives they view as overreach. It requires a concurrent resolution to be approved by the Utah House and Senate with a two-thirds majority.
In a statement, the law’s sponsor, Sen. Scott Sandall, said the “request [from the board] hasn’t been widely discussed yet, but we will review it in the coming weeks.”
Even if the Legislature did pass a resolution to try to ignore the new Title IX rules, University of Utah constitutional law professor Clifford Rosky thinks “nothing” would happen.
“I don’t think the board of education will get much benefit if the Legislature invokes the Constitutional Sovereignty Act because the Constitutional Sovereignty Act is not constitutional,” Rosky said. “The Constitutional Sovereignty Act doesn’t change anything except give a judge a really good chuckle.”
Referencing the Supremacy Clause of the Constitution, Rosky said, simply, federal law trumps state law.
A spokesperson for the state board of education did not respond by deadline to KUER’s questions about why the board wants lawmakers to invoke SB 57 and what guidance the board is giving to schools to handle the pending Title IX changes.
