Hutchinson, Rutledge criticize Biden transgender proposal for schools

Gov. Asa Hutchinson and Attorney General Leslie Rutledge expressed opposition Thursday (Sept. 15) to a proposed rule by President Joe Biden’s administration they said would threaten school funding over transgender issues.

Hutchinson said the proposed rule change would put schools in a difficult position of either violating federal rules or violating Arkansas law designed to protect women’s sports from participation by biological males.

“This would interfere with Arkansas law, it would interfere with common sense, and it would interfere with local control,” he said.

The U.S. Department of Education announced in June it was proposing changes to its interpretation of Title IX, a law signed by President Richard Nixon in 1972. It states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

“Over the last 50 years, Title IX has paved the way for millions of girls and women to access equal opportunity in our nation’s schools and has been instrumental in combating sexual assault and sexual violence in educational settings,” U.S. Secretary of Education Miguel Cardona said in June. ”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.”

Hutchinson said he hopes the Biden administration changes course based on state comments. If the rules are adopted, it would be a “recipe for a disaster in women’s sports.” He said the state would look for ways to litigate. Rutledge joined with 16 other attorneys general in submitting a formal complaint to Secretary Cardona dated Sept. 12. Arkansas Secretary of Education Johnny Key submitted a letter to Cardona the same day.

Rutledge said in the press conference that Title IX had provided opportunities for female athletes that would be jeopardized by changes to the rule. She referenced Lia Thomas, the controversial University of Pennsylvania transgender swimmer who won an NCAA national championship competing this year against women.

Hutchinson recalled a guidance letter he received in May 2016 from the U.S. Department of Education’s Office for Civil Rights under President Barack Obama saying schools had to comply with nondiscrimination laws regarding students’ gender identity. He said at the time that he told school districts that they didn’t have to follow the guidance and that such issues were best considered locally. The Trump administration then revoked that guidance.

He said Biden’s proposed rule changes would go beyond Obama’s and create a rule that would threaten school districts with a loss of federal funds, including for free and reduced lunches, if they discriminate based on sexual orientation and gender identity.

“We believe that every child in Arkansas should have a good education free of discrimination, but at the same time we ought to manage these difficult issues at the local school board level,” Hutchinson said.

The June announcement by the federal Department of Education included a provision saying a separate rulemaking would occur regarding Title IX’s application to athletics. But Hutchinson and Rutledge still said the current rulemaking would conflict with Arkansas law designed to prohibit biological males from competing in female sports.

Hutchinson said the federal Department of Education is misusing a Supreme Court decision in the 2020 Bostock v. Clayton County case that prevented employment discrimination regarding sexual orientation and gender identity under Title VII, a different law. He said the Biden administration is taking the rule out of context and applying it to education in violation of what was designed by Congress or required by the Bostock decision.

He said such proposals are being expanded to other federal agencies.

“These proposed amendments of the Biden administration not only fly in the face of well-established law, but they fly in the face of reason and the intent of Congress,” he said. “The state of Arkansas will not stand by idly while the federal government seeks to redefine federal law to the detriment of women’s sports and local decision making.”

Democratic Party of Arkansas Chair Grant Tennille criticized the press conference by the Republican officials, saying they were attacking children.

“This isn’t in the top 100 issues facing Arkansas, and it’s not in the top 500 issues facing LGBTQ people or their families who are struggling with housing, employment, health care and threats of violence,” he said.

Tennille said Democrats support the proposed rule, saying, “He is the president of the United States, and he is of our party, so we support President Biden’s proposed rule.”

Sarah Everett, staff attorney with the ACLU of Arkansas, said discriminatory practices send a message that transgender students are unwelcome in Arkansas.

“Excluding transgender students from sports, restrooms corresponding to their gender identity, and other spaces is discriminatory and stigmatizing,” she said. “This is just one of a series of continued attacks by Arkansas politicians on LGBTQ Arkansans. Many of these measures target trans youth, an already vulnerable group that experiences high rates of depression and suicide.”