SC education superintendent suggests schools disregard new Title IX rules

COLUMBIA — South Carolina’s education chief is recommending that school districts disregard new federal Title IX regulations issued by the Biden administration.

In a letter to district boards and superintendents Tuesday, state Education Superintendent Ellen Weaver called the rule changes “deeply troubling,” arguing they could violate state and federal law and will likely be challenged in court.

The U.S. Department of Education on Friday, April 19, published extensive revisions to the federal law that prohibits sex-based discrimination at schools that receive federal funding.

The new rules, which are set to take effect Aug. 1, roll back many of the alterations made under former President Donald Trump that narrowed the definition of sexual harassment. The change then goes further, extending the definition of sex discrimination to include sexual orientation and gender identity.

“Under the guise of ‘fairness,’ the U.S. Department of Education seeks to expand the long-standing prohibition against discrimination based on ‘sex’ to include ‘sex stereotypes, sex-related characteristics, pregnancy or related conditions, sexual orientation, and gender identity.’ ” Weaver wrote in the letter obtained by the SC Daily Gazette.

“This is not fairness: it is fiat,” she continued. “By redefining the class of people that Title IX intends to protect, the Biden administration’s rule seeks to change the meaning and purpose of the underlying law.”

The letter marks the second such message sent out by a state education agency head this week. Louisiana’s superintendent distributed a similar message Monday.

LGBTQ advocates responded, saying the letter from Weaver shows a lack of understanding and compassion, particularly for transgender, nonbinary, and intersex students, “who have witnessed their very existence being politicized.”

“We look to our schools to be safe and equitable spaces for all students — where they have the freedom to be themselves without fear of harassment and discrimination,” said Chase Glenn, executive director for the Alliance For Full Acceptance. “While Superintendent Weaver may not personally support the rights of LGBTQ+ students, she has the responsibility as the top school leader in our state to ensure that all students have equal rights and protections and a safe place to learn and be themselves. The flagrant disregard shown for the Title IX rule tells me that our superintendent unfortunately does not have the best interests of all students in mind.”

Weaver blasted the regulatory change as a violation of free speech, saying it compels students and teachers to use a child’s preferred pronoun.

She suggested the rule put female students in danger by requiring transgender students be allowed to use bathrooms and locker rooms consistent with their gender identity or share sleeping arrangements on overnight trips.

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“We fully anticipate this rule will be tied up in litigation for some time and, eventually, will be struck down or modified, in whole or in part, by the federal courts,” Weaver wrote, before telling school officials her department recommended districts not implement the rule at this time.

A court could block them anyway before they’re supposed to take effect, she wrote.

Weaver also went on to say changes could extend to athletics.

South Carolina is among 24 states that have passed laws preventing transgender student-athletes from competing on sports teams consistent with their gender identity.

The Biden administration has yet to finalize a separate rule that would ban this practice.

State lawmakers also are weighing a bill that, along with banning hormone treatments for transgender kids, would require school officials notify parents if their child requests to be addressed by a pronoun that does not match their birth sex. If passed into law, the proposal could potentially be called into question.

In response to Weaver’s letter, Sen. Tameika Isaac Devine, D-Columbia, proposed Wednesday inserting into the state budget a clause barring the superintendent from offering any Title IX guidance that conflicts with the federal rules unless the Legislature specifically gives her permission.

Senate Education Chairman Greg Hembree called that an awful idea.

“This is a 1,500-page dumpster fire that is headed for the courts,” the Little River Republican said of the Biden administration’s new rules. “That’s where we’re headed. In the meantime, this goes in effect in August.”

Schools need guidance on what to do with the pile of new rules, and the Legislature will soon be out of session. Legislators shouldn’t bar an administrative function, he said.

“Schools are lost as to what this means for them,” he said after taking the podium to oppose Devine’s proposed budget amendment, which was rejected.

“The courts will ultimately decide it, but in the meantime, somebody needs to be in charge,” he said. “We don’t need to make it more gray.”