Statements Of Hutchinson, Rutledge Would Violate Civil Rights Of LGBTQ+ Students Under Title IX

By Antoinette Grajeda, Arkansas Advocate

September 15, 2022

Arkansas Gov. Asa Hutchinson and Attorney General Leslie Rutledge on Thursday criticized the Biden administration’s proposal to increase protections and opportunities for transgender students under Title IX.

The civil rights law, celebrating its 50th anniversary this year, prohibits sex-based discrimination in federally-funded education programs like sports.

The proposed regulations would strengthen safeguards for LGBTQ students by clarifying that Title IX’s protections apply to discrimination based on sexual orientation or gender identity, according to to the U.S. Department of Education.

“This would interfere with Arkansas law, it would interfere with common sense and it would interfere with local control,” Hutchinson said at Thursday’s press conference.

Arkansas anti-transgender laws

Last year, Hutchinson signed the Fairness in Women’s Sports Act into law. The bill prohibits transgender women and girls from participating on school-sponsored female teams. Louisiana became the 18th state to pass a similar bill this June.

Arkansas was the first state to approve a law banning certain gender-affirming treatments for minors in April 2021. Hutchinson vetoed the law, but the General Assembly overrode the veto. A federal judge blocked the law from going into effect in July 2021, and an appeals court affirmed the decision last month. A trial on whether to permanently block the law is scheduled for October.

The Arkansas Department of Education has submitted comments in opposition to the Biden administration’s proposed changes. The federal Department of Education began accepting public comments in June, and thousands of responses were received by the Sept. 12 submission deadline.

Additionally, Rutledge joined 16 other attorneys general in a formal comment letter opposing the regulations.

“The Biden administration is simply trying to rewrite the statute for its own purposes and undermining the many accomplishments that we have gained in access for women in athletics as well as the free speech that it’s infringing upon for states and schools and colleges,” Rutledge said.

The proposed amendments would reverse regulations implemented during the Trump administration. For example, regulations introduced by former Education Secretary Besty DeVos in May 2020 defined sexual harassment to include sexual assault, dating violence, domestic violence and stalking. The new regulations would include “all forms for sex-based harassment, including unwelcome sex-based conduct that creates a hostile environment.”

The requirements of the current regulations only cover formal complaints. Proposed amendments would establish clear requirements for schools to conduct “reliable and impartial” investigations of all sex discrimination complaints.

The new regulations also call for the protection of students and employees who are pregnant or have pregnancy-related conditions.

The changes would put Arkansas school districts in a “difficult position,” Hutchinson said. Districts would not be able to comply with both state and federal law, meaning they would risk losing funding for critical programs, like free and reduced price lunches.

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.

– Title IX of the Education Amendments Act of 1972

Because the rules are being discussed and have not been finalized, the governor advised districts to continue following current guidance. If the new rules ultimately go into effect, Hutchinson said the state will look at ways to challenge them in court.

Every Arkansas child should have access to “a good education free of discrimination,” but these “difficult” issues should be addressed at the school board level, Hutchinson said. When a reporter questioned protecting LGTBQ kids from discrimination, Hutchinson argued current state law isn’t discriminatory.

“I don’t believe it is discrimination if you’re telling a biological male who may one day wake up and identify as a female that they have to go to a bathroom that’s based upon their birth sex,” he said. “I don’t think that is discrimination. I think that is how you have to conduct things in the reasonable affairs of life and the conduct of education.”

Federal education officials will begin reading through public comments before releasing final regulations. Officials have not announced a date for when the decision will be made.

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