SALT LAKE CITY – The state government here is headed for a showdown with the Biden administration over transgender rights and Utah Democrats aren’t happy about it.
During its special session on June 19, Republican lawmakers evoked the Utah Constitutional Sovereignty Act to block attempts by the federal government to broaden the provisions of Title IX to include gender identity and sexual orientation.
After the predictable party-line legislative vote, Utah Democrats called the Republican action “an egregious violation of the Supremacy Clause of the U.S. Constitution.”
“Republican legislators, who so often claim to represent the ideals of our Founding Fathers, have shown today that they would rather cater to anti-LBGTQ+ radicals than uphold constitutional law,” according to Diane Lewis, chair of the Utah Democratic Party.
“By usurping the role of the courts, the Republican Caucus has betrayed the spirit of federalism and our constitution.”
But GOP partisans argue that they are upholding the ideals of federalism – that is, state’s rights — in the face of federal overreach of its authority.
“Federalism is the way forward,” said House Speaker Mike Schultz (R-Hooper), who insists that Utah is willing to stand on its principles, even if they threaten current federal funding for education.
Title IX is a landmark federal civil rights law that was enacted as part of the Education Amendments of 1972. It prohibits sex-based discrimination in any school or any other educational program that receives funding from the federal government.
However, the new Title IX rules proposed by the U.S. Department of Education, which are set to go into effect on Aug. 1, would change the definition of sex discrimination to include gender identity and sexual orientation. They would also change the way colleges and universities conduct investigations into sex discrimination, making cross-examination of witnesses in live hearings optional.
Acting on a request from the Utah State Board of Education for clarification of laws created by the 2024 general session of the Legislature, lawmakers passed House Concurrent Resolution 301 on June 19 prohibiting Utah officials from enforcing or assisting in the enforcement of the new provisions of Title IX.
Mason Hughes, the communications director for the Utah Democratic Party, calls that decision “incredibly disheartening,” coming as it did in the midst of Pride Month, which is meant to be a time of celebration for LGBTQ+ Utahns.
By unilaterally blocking enforcement of federal law, Hughes explained, Republican lawmakers have embraced the fringe constitutional theory of nullification, which dates back to the 1790s in American politics.
He added that no federal court has ever upheld the idea that the states can unilaterally decide which federal laws can be enforced.
But Schultz counters that Utah is “… on pretty solid legal ground,” citing recent federal court rulings in Kentucky and Louisiana against the new Title IX rules, with one judge calling them an “abuse of power’ by the federal government.
Nor is the Beehive State alone in opposing the new Title IX rules. Utah has joined three other GOP states and four private entities in a pending lawsuit that challenges the revised version of Title IX.
Schultz acknowledged that federal funds provide about 10 percent of Utah’s annual funding for public and higher education, but added that the state could dip into reserve accounts to make up the difference if the Department of Education chose to withhold that funding.
The Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws and treaties made under its authority, constitute the “supreme Law of the Land,” and thus take priority over any conflicting state laws.