It is estimated that up to 1.8% of youth identify as transgender, and a further 1.6% are questioning or gender diverse. (Photo by Ted Eytan, used through a Creative Commons license by the Daily Montanan).
Montana Gov. Greg Gianforte signed onto a joint letter with 14 other governors rejecting the Biden administration’s proposed changes to Title IX on July 27.
The governors’ letter urges Biden to “join them in protecting equal opportunities for girls and women” and claims the administration’s inclusion of protections against discrimination based on sexual orientation and gender identity harms female students.
“Governor Gianforte has again shown his hatred for the trans community by twisting his interpretation of the proposed changes and utilizing this as an opportunity to again attack trans students,” ACLU of Montana policy director Keegan Medrano said in a July 29 press release.
Title IX, which turned 50 this year, is a landmark federal civil rights law that protects against sex-based discrimination and violence in education programs and institutions that receive federal funding, including student athletics. The Biden Administration began their review to update Title IX in March 2021.
“As we celebrate the 50th anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students – no matter where they live, who they are, or whom they love – can learn, grow and thrive in school,” U.S. Secretary of Education Miguel Cardona said when the changes were released.
The governors’ letter argues the reinterpretation of Title IX to include sexual orientation and gender identity as protected classes will encroach on the rights of “biological females,” although the proposed Title IX changes do not remove any protections from the previous iterations of the law. The proposed updates include protections for parents supporting their students, protections for pregnant students and employees and outlined measures schools should take to respond to complaints, among other changes.
The letter mentions protecting “biological females” in athletics in response to the proposed changes, citing a 2021 Gallup poll where 62% of respondents said students should “play on teams that match birth gender.” However, the current Title IX updates under consideration do not apply to athletic programs, and The Biden administration will do a separate rule review for athletic programs at a later date.
“Your administration has continued to push misguided reinterpretations of Title IX that hurt girls, women and all children across our country,” the joint letter stated. “It would force any institution that receives federal financial aid to allow biological males access to women’s and girls’ locker rooms, bathrooms and dorms, depriving them of privacy and safety at school.”
While the proposed rules prohibit discrimination in education, they do not mandate rules about access to locker rooms, bathrooms or domitories.
The letter also criticized a proposed U.S. Department of Agriculture policy change that would require any state and local agencies, program operators and sponsors that receive funds from USDA to investigate allegations of discrimination based on gender identity or sexual orientation. Although the proposed change would not limit access for specific groups of students, the letter argues it threatens states’ access to the National School Lunch Program.
However, that interpretation is also dubious because the proposed rules require an investigation of discrimination based upon gender identity or sexual orientation, but does not threaten to withhold access to the federally subsidized National School Lunch Program.
Montana Attorney General Austin Knudsen also joined with other Republican states attorneys general to voice similar concerns last week.
The governors asserted if the Biden administration moves forward with their updates to Title IX, they would pursue other avenues to fight the regulations. The governors also claimed the 2020 Supreme Court case Bostock v. Clayton County does not apply to Title IX and should not inspire changes to the law. The case stated it is “impossible to discriminate against a person” based on sexual orientation or gender identity without “discriminating against that individual based on sex.”
“If your Administration chooses to move forward with these reinterpretations of Title IX, Bostock and basic human biology, our states will have no choice but to pursue avenues to redress any harm that is done to our children as a result,” the letter concluded. “We trust that you will give attention to the concerns we have outlined and look forward to an expedient resolution that will keep food in the mouths of our children and fairness on the playing field.”
Gianforte signed the letter along with South Dakota Governor Kristi Noem, Arizona Governor Doug Ducey, Arkansas Governor Asa Hutchinson, Georgia Governor Brian Kemp, Iowa Governor Kim Reynolds, Idaho Governor Brad Little, Mississippi Tate Reeves, Missouri Governor Mike Parson, Nebraska Governor Pete Ricketts, Oklahoma Governor Kevin Stitt, South Carolina Henry McMaster, Tennessee Governor Bill Lee, Virginia Governor Glenn Younkin and Wyoming Governor Mark Gordon.
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