South Carolina education leader: schools should ignore LGBTQ-inclusive Title IX rule

South Carolina Superintendent of Education Ellen Weaver has joined the list of state officials objecting to the Biden administration’s new, LGBTQ-inclusive rule on the application of Title IX of the Education Amendments of 1972, the law banning sex discrimination in educational programs that receive federal funds.

The rule, announced April 19, says that sex discrimination includes discrimination based on sexual orientation and gender identity. Among other things, it means that schools that don’t allow transgender and nonbinary students to use the pronouns and facilities that comport with their gender identity could be violating the law.

This interpretation of Title IX is “deeply troubling,” Weaver, a Republican, wrote in a memo to South Carolina school districts last week, Charleston TV station WCBD reports. She advised the districts to ignore the rule, which is set to go into effect August 1.

“Now, 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 (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity,'” she continued in the memo, which was obtained by the station. “This is not fairness: it is fiat.”

“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, thus compelling the speech of students and teachers related to preferred pronoun use; upending biology-based protections for females in athletics, bathrooms, locker rooms, overnight accommodations, and other sex-separate spaces and activities; placing massive legal uncertainty and compliance costs on districts; and creating chaos and confusion for teachers, students, and parents,” Weaver added.

She expects the rule to be challenged in court, and indeed, it already has been. “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,” she wrote. “It is possible — even likely — that a court will enjoin [the rule] prior to its effective date.”

Louisiana, Mississippi, Montana, and Idaho filed a joint lawsuit Monday against the rule. And Oklahoma Superintendent of Public Instruction Ryan Walters has directed schools to ignore it, for which he was roundly criticized at a State Board of Education meeting last Thursday.

South Carolina civil rights activists quickly denounced Weaver’s move. “Once again, Superintendent Weaver puts her political perspectives ahead of the kids she is supposed to serve,” Jace Woodrum, executive director of the American Civil Liberties Union’s South Carolina affiliate, said in a press release. “In addition to encouraging districts to ignore federal regulations — and putting our underfunded schools at risk of losing critically needed dollars — her letter suggests transgender kids don't exist and shouldn't be protected from discrimination. This rhetoric is yet another example of her callous approach to serving our students."

The memo comes at a time when South Carolina is considering further anti-LGBTQ+ legislation. “Superintendent Weaver’s Department of Education is pushing for an overly broad book banning policy (Regulation R. 43-170) that would empower anti-LGBTQ+ groups to purge books from our schools,” the ACLU’s press release noted. “At the same time, state lawmakers are considering a classroom censorship bill (H. 3728) that would restrict the ability of teachers to discuss gender inequality in a classroom setting.”

Weaver’s memo “parrots much of the same inflammatory anti-LGBTQ+ language used by political pundits,” Chase Glenn, executive director of the Alliance for Full Acceptance, said in a statement to WCBD. “It’s time to take this type of political rhetoric out of our schools. 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.”