Oklahoma leaders exploring options to fight Biden administration rules on gender identity

OKLAHOMA CITY — Oklahoma officials are weighing options to follow other Republican-led states mounting legal challenges to new Biden administration Title IX rules that add protections for gender identity.

Attorney General Gentner Drummond intends to join a lawsuit Kansas officials are preparing to file against the federal government in hopes of overturning the newly enacted regulations, his communications director, Phil Bacharach, said.

The U.S. Department of Education announced the final version of the rules on April 19. The provision that caused the most outcry from Republican leaders is the inclusion of treatment based on gender identity within the scope of sex discrimination.

“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination,” U.S. Secretary of Education Miguel Cardona said when announcing the rules. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”

Drummond objected to the regulations in a 2023 letter while they were mere proposals from the federal Department of Education.

Gender identity is not a federally protected class, he wrote. Adding mandatory protections for gender identity “rewrites Title IX” and infringes on states’ rights to legislate on the issue, he said.

“A founding principle of this country is that the power to make law is delegated to elected representatives, not unelected agency officials,” Drummond wrote.

Oklahoma already enacted laws prohibiting transgender girls from participating in womens’ sports and requiring school bathroom use according to biological sex, not gender identity.

State Superintendent Ryan Walters said the Oklahoma State Department of Education is pursuing a lawsuit over the federal regulations, as well. 

He instructed Oklahoma school districts to ignore the new rules, calling the regulations “unconstitutional” and harmful to girls and women.

Walters and Drummond have contended gender identity protections could threaten the integrity of women’s athletics, though this edition of the rules contains no stance on athletic eligibility. Republicans across the country also have claimed the rules could present a danger to girls if their transgender peers are allowed to use female restrooms or locker rooms.

The U.S. Department of Education has said the new rules are mandatory for states that receive federal education funds, which amount to hundreds of millions of dollars for Oklahoma districts.

Despite the risk of losing funding, Walters said his agency will fight the Biden administration “every step of the way.”

“We will not enact these policies,” Walters said while speaking with reporters last week. “It’s just not going to happen. We’re not going to allow it, and we’re going to stand with our other conservative states to push back on this radical redefinition of Title IX.”

Louisiana, Mississippi, Montana and Idaho are joining in a lawsuit against the rules. Tennessee, West Virginia and four other Republican-led states also have filed a legal challenge. 

Tennessee Attorney General Jonathan Skrmetti said a federal agency cannot single-handedly redefine sex discrimination.

“We have every expectation that we’re going to win this case,” Skrmetti said in a Tuesday news conference announcing the lawsuit. “And we look forward to litigating it on behalf of the people of Tennessee and the other five states involved and look forward to getting clarity from the courts and holding the executive branch accountable.”

The federal Department of Education followed a “rigorous process” while crafting the rules to ensure no person experiences sex discrimination in a federally funded school, according to a statement last week.

“We look forward to working with school communities all across the country to ensure the Title IX guarantee of nondiscrimination in school is every student’s experience,” the agency said.