Idaho Attorney General Lawrence Wasden this month joined 20 fellow Republican state attorneys general in signing a letter to the White House disputing recent federal guidance on how — and whether — anti-discrimination laws protect transgender students.
In the letter, Wasden and his counterparts objected to federal notices that, in “a 180-degree change” from the Trump administration, asserted that Title IX’s prohibition of sex-based discrimination by schools receiving federal money applies to transgender students. While the U.S. Department of Education argues those protections for transgender students were cemented by a 2020 U.S. Supreme Court case, the state attorneys general contend the issue is still unresolved as at least eight of their states defend restrictions on transgender students, Wasden’s included, Education Week reported.
An Education Department “notice of interpretation” of federal law “goes far beyond interpreting Title IX and instead seeks to rewrite it,” the attorneys general wrote.
Idaho’s transgender athlete ban and a pivotal SCOTUS case
Idaho is currently embroiled in a lawsuit over its state law, which bars transgender women and girls from competing in school women’s and girls’ sports, regardless of whether they undergo hormone treatments that alter their athletic ability. Enforcement of the ban, dubbed the Fairness in Women’s Sports Act, is temporarily on hold while a federal court weighs challenges to its constitutionality.
The state’s involvement in the court challenge, the Hecox v. Little case, “was a consideration in our office signing on to the letter,” Attorney General’s office spokesperson Scott Graf wrote in an email to EdNews Thursday.
Wasden’s office previously issued an opinion about the Idaho law before it was passed, posing a slew of questions about its constitutionality and, at one point, advising lawmakers to wait a year for the Supreme Court to resolve cases related to LGBTQ protections. The opinion referenced an unresolved case in Georgia. In June, a ruling in that case declared the firing of workers by their employers based solely on employees’ sexual orientation or transgender status illegal under federal law.
The ruling held that protections against sex-based discrimination in Title VII, the employment law, apply to gay and transgender workers. The Biden administration reasons that if sex-based discrimination, by definition, includes LGBTQ workers, it also includes LBGTQ students under Title IX, which similarly prevents schools from discriminating “based on sex.”
Wasden maintains the ruling in the recent Supreme Court employment case, Bostock v. Clayton County, was more narrow.
Graf pointed to lines from the Supreme Court’s majority opinion: “The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”
In its opinion last year, Wasden’s office acknowledged what the administration would later argue, that “Because courts interpret the word ‘sex’ in Title IX by looking to how it is interpreted under Title VII, the Supreme Court’s upcoming ruling in the Title VII cases could determine whether Title IX prohibits discrimination on the basis of transgender status.”
The Attorney General publicly opposed extending the employment law’s definition of “sex” to Title IX, even before Idaho was sued.
The AGs’ letter
The attorneys general letter singles out two pieces of federal guidance stemming from the Bostock case, one from the Equal Employment Opportunity Commission and one from the Education Department. The former focuses on employment, not schools, but drew letter writers’ ire for suggesting that transgender employees should be guaranteed use of bathrooms associated with their gender identity, and that “severe” use of pronouns or names inconsistent with a coworker’s identity, “when considered together with all other unwelcome conduct,” could be considered harassment under the law.
The Supreme Court’s opinion “explicitly refrained from addressing ‘sex-segregated bathrooms, locker rooms, and dress codes,”’ the letter stated.
The Education Department’s interpretation took fire in the letter for attempting to extend protections to transgender students; the letter zeroed in on athletics.
Attorneys general wrote, the Education Department can’t “‘provide equal athletic opportunity for members of both sexes'” as Title IX mandates without “acknowledging that there are, in fact, two biologically distinct sexes.”
Rep. Barbara Ehardt, R-Idaho Falls, staked a similar claim when she helped push Idaho’s law through the Legislature. For her, transgender women and girls competing on women’s and girls’ teams is a fairness issue.
Guidance on transgender student protections has now drastically changed at least twice in the last decade: first, when then-President Donald Trump rescinded Obama-era protections for transgender students and delivered his own; and second, with the recent Biden actions. Plus, the Justice Department under Trump backed Idaho in the challenge to its law, then pulled its support under Biden.
But the Attorney General didn’t write to the White House to bemoan the initial pivot under Trump.
“There are many federal actions our office does not address with this type of letter, but in those instances it should not be construed that we necessarily agree with the actions being taken. In this case, we were presented with the opportunity to sign on to a letter addressing a matter in which our state has a direct interest based on pending litigation,” Graf said.
The unclear upshot
With academic legal clashes abounding, it’s unclear what the upshot will be for Idahoans.
White House guidance “is just that — guidance,” Graf said, and an Education Department memo said of its pro-transgender protections message, “This interpretation will guide the Department in processing complaints and conducting investigations, but it does not itself determine the outcome in any particular case or set of facts.”
And the court challenge to Idaho’s transgender athlete law isn’t centered on Title IX, though three former Idaho attorneys general did cite the Bostock case’s position on LGBTQ protections, foreshadowing the Biden administration stance in a brief opposing the law.
Rather, the case is focused on the Equal Protection Clause of the Fourteenth Amendment and the Fourth Amendment; opponents argue the law would trigger unconstitutional searches and seizures, since it would allow any person to challenge the sex of a student-athlete on a team for women or girls, forcing an invasive medical exam to prove their sex.
The first of its kind in the U.S., Idaho’s transgender athlete ban was passed by the state’s supermajority Republican Legislature and signed into law by Republican Gov. Brad Little in 2020. The idea was exported across state lines; as of April, over 30 states were considering similar bills, the Idaho Capital Sun reported.
Enforcement of Idaho’s law is still effectively paused after an injunction was granted, and the timeline for a final decision is unclear. In May, a U.S. appeals court took up the case, the Associated Press reported.
But a part of the case has now been kicked back to the Ninth Circuit judge who granted the injunction over a mootness challenge, Graf said, which could mean a stakeholder listed in the case has lost their standing after leaving or graduating from their respective high school or university.
Consequently, Graf said, another hearing could be coming this fall.