Arkansas and five more states sue over federal rule change protecting LGBTQ students

Brian ChilsonArkansas AG Tim Griffin (left) and Missouri AG Andrew Bailey

Arkansas Attorney General Tim Griffin and his Missouri counterpart announced a new lawsuit Tuesday against the Biden administration over a recent re-write of rules for Title IX, the landmark 1972 law that prevents discrimination on the basis of sex in schools, colleges and universities that receive federal funding.

The revised rules, which take effect later this year, extend Title IX protections against harassment and discrimination to LGBTQ students, among other changes. Conservatives claim the changes threaten the integrity of girls’ and women’s athletics and raise free speech issues.

Though the new Title IX rules provide protections for LGBTQ students generally, they do not directly address the politically charged issue of transgender student athletes. The Biden administration is taking up that question in a second rule change that’s still being hashed out. But Republican politicians like Griffin claim the recent change nonetheless pushes schools to allow transgender women to join women’s sports teams and share private spaces, such as locker rooms.

Griffin referenced a single example of a transgender woman competing in a track meet in New York state. “This rule change is a welcome mat for more of that unacceptable behavior,” he said.

The lawsuit filed today by Griffin and Missouri Attorney General Andrew Bailey is at least the fourth lawsuit filed by red-leaning states opposed to the rules. Along with Arkansas and Missouri, it includes Nebraska, Iowa, South Dakota and North Dakota, all of which are part of in the federal court system. (Minnesota is the only 8th Circuit state that did not join the suit.) 

It also includes an Arkansan as a private plaintiff — Amelia Ford, a 10th-grade varsity basketball player from Jonesboro who attends Brookland High School. Ford appeared at the press conference today alongside state officials and offered brief remarks, thanking Griffin and Bailey for filing the suit.

Here’s the complaint, filed in U.S. District Court in St. Louis.

Gov. Sarah Sanders held a press conference last week to declare Arkansas would “not comply” with the Title IX changes and threatened to sue the Biden administration if it should move to cut off federal funds to Arkansas schools. Apparently, Griffin has decided to sue regardless. 

Asked Tuesday to provide examples of transgender student athletes competing in Arkansas, Griffin said, “We have no obligation to sit around and wait until the examples pile up.” He acknowledged that critics might say the lawsuit is a solution in search of a problem. But, “everything that starts on the East and West Coasts ends up here,” he said. “And the Biden administration rule … is going to make sure that this ends up here.”

Griffin outlined several legal avenues in the complaint. Title IX has been around for many years, and the Biden administration’s use of the decades-old law in such a novel context is impermissible, he claimed. A major policy question like this one should be taken up by Congress, not through a federal agency’s rule-making process, Griffin said. And, there’s a constitutional rights challenge under the First Amendment’s free speech protections.

The First Amendment issue appears to have nothing to do with athletics, however — it’s about pronoun use. Conservatives fret that the new rules could be used to bring Title IX harassment complaints against students or staff who don’t use the preferred pronouns of a transgender or other LGBTQ-identifying student.

“The First Amendment protects the rights of individuals to decline to use pronouns inconsistent with sex,” the complaint says, but the Title IX rules could be used to compel them to do so.

Take Amelia Ford, for example. “She is a Christian and believes that God created every person to be immutably either male or female,” the complaint declares. “In following her religious beliefs, she only addresses and refers to other people using pronouns or titles consistent with the person’s sex. She believes that, were she to use pronouns or titles that contradict the person’s sex, she would violate her religious beliefs and be lying about what she knows to be true.”