Federal agencies are stepping up their attention to recently passed state anti-transgender laws, such as Montana’s new law banning transgender women from participating in women’s sports.
The US Department of Justice said last week that a new West Virginia law banning transgender women from participating in women’s sports violates federal non-discrimination laws. The U.S. Department of Education also issued a notice last week that Title IX discrimination protections extend to transgender students, a warning that threatens funding for federal financial aid recipients.
The Montana Legislature, in the process of passing House Bill 112, had braced for such a post from the new presidential administration earlier this year. It came after President Joe Biden issued an executive order on his first day in office to protect transgender students’ access to sports. Before the end of the legislature, the NCAA had fired its own warning shot at state wallets, announcing that it would only hold championship games in states “without discrimination”, referring to support for transgender athletes.
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By the time Montana’s bill was signed, it had been amended to specify that the law would stand through the arbitration process if the US Department of Education objects.
That route would have been the standard route anyway, but the bill’s sponsor said the change made some who feared losing federal funding feel comfortable. A previous amendment that was stripped from the bill would have blocked the law at the point of the objection and not waited for the litigation to run its course.
If, after ruling, the U.S. Secretary of Education files a report with Congress finding Montana’s law non-compliant, HB 112 becomes void 21 days later.
Several laws passed by the GOP-dominated legislature and signed into law by the first Republican governor in 16 years are currently being tested in court, HB 112 included. But those federal proceedings would take place outside of the courts, in an administrative process through the U.S. Department of Education.
A spokesperson for the state’s Office of Public Instruction said Wednesday the agency was not aware of any such proceedings pending as a result of the U.S. Department of Education notice. . State Superintendent of Public Instruction Elsie Arntzen, a Republican, also said the interpretation notice does not automatically trigger the repeal of HB 112.
“OPI will consult with relevant stakeholders to determine the impacts, if any, of the advice on the implementation of HB 112 in the future,” Arntzen said in an emailed statement. “As for the notice itself, we are still evaluating what it will mean in practice.”
Arntzen was also concerned that the U.S. Department of Education’s interpretation could threaten the advancement of athletic opportunities provided to women’s and women’s sports through Title IX. The OPI did not provide a figure when asked how much federal funding the state receives in the form of federal financial assistance subject to Title IX compliance.
In a June 17 filing in a West Virginia case challenging the state’s new law — which has the same effect and similar language to Montana’s HB 112 — a U.S. Justice Department district attorney said that the ban violated the Equal Protection Clause of the 14th Amendment, as well as Title IX, which prohibits discrimination on the basis of sex in any educational program or activity receiving federal funds.
In Montana, a lawsuit challenging HB 112 in state district court does not argue in favor of the federal discrimination law, but rather asks a judge to strike down the new law based on the US Constitution. State, which grants the Board of Regents authority over campus matters.
West Virginia officials, pushing their own ban, claimed their law would protect athletic opportunities for girls.
“Neither the facts nor the law support this assertion,” the Justice Department wrote in the West Virginia case. “Certainly, there remain significant barriers to providing full equity in athletics for female students. not part”.
Montana’s new law has also been cited as the “Save Women’s Sports Act”.
When asked if the passage of HB 112 triggered such lawsuits against Montana, a spokesperson for the U.S. Department of Education did not return responses to the Montana State News Bureau. before press time.
But Rep. John Fuller, the Republican Representative from Whitefish who sponsored HB 112, expects the US Department of Education to begin proceedings soon.
“Can you spell plead?” That’s what’s going to happen,” Fuller said in a phone interview Tuesday.