AG says state law, school policy differ
Gender identity discrimination is issue
School districts that adopt a policy that prohibits the exclusion of students from activities based on sexual orientation or gender identity could be in violation of state law, Attorney General Tim Griffin wrote in an opinion earlier this week.
Griffin’s opinion came in response to a request from state Sen. Missy Irvin, R-Mountain View, who said a school board in Arkansas adopted a policy that violates state laws banning males from participating in school-sponsored female sports. Irvin did not name which school district adopted the policy, nor did she return a request from the Arkansas Democrat-Gazette for comment.
The policy in question, which Irvin said is based on a federal model, is: “No student in the [District] shall, on the grounds of race, color, religion, national origin, sex, sexual orientation, gender identity, age, or disability be excluded from participation in, or denied the benefits of, or subjected to discrimination under any educational program or activity sponsored by the [District].”
Specifically, the part of the policy that could violate state laws is the inclusion of sexual orientation and gender identity as protected classes, Griffin said. School districts that adopt such a policy would be in violation of state law if it is used to end designating school sports as male, female or co-ed, or if it “allowed male students to participate in female-designated sports teams,” the Republican attorney general wrote in an opinion dated Oct. 2.
Specifically, school districts that adopt this policy could find themselves going against Act 461 and Act 953 of 2021, which require sex segregation in school-sponsored sports. The laws also ban males from participating in sports designated for females.
“The State of Arkansas through the Legislature has
been very clear on this issue through the passage of my law, signed by Governor Hutchinson,” Irvin, who was the lead sponsor of both pieces of legislation, said in a news release Friday. “We will always stand on the side of protecting young girls’ ability to compete fairly in sports and activities.”
Griffin also said the policy, if adopted by school boards, could run contrary to a third state law, Act 137 of 2015, that prohibits cities, counties and other political subdivisions from adopting non-discrimination policies for classes of people who aren’t protected in state law. That means local governments are prohibited from enforcing non-discrimination policies that protect people on the basis of their sexual orientation or gender identity, Griffin said.
“The U.S. and Arkansas Constitutions and state and federal civil rights laws protect students from discrimination based on sexual orientation and gender identity,” Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, said in a statement. “Arkansas politicians may try to cherry pick laws that allow discrimination, but they cannot ignore constitutional and civil rights protections and any attempts to do so will be at the peril of all Arkansans and taxpayers.”
In the 2020 decision in Bostock v. Clayton County, Ga., the U.S. Supreme Court’s majority held that federal civil-rights protections on sex and gender apply to gender identity. Writing for the majority, Trump-nominated Justice Neil Gorsuch wrote “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Last year, former Gov. Asa Hutchinson held a news conference announcing his concerns to proposed changes to federal rules on Title IX, a 1972 civil rights law that protects students against discrimination based on their sex.
The U.S. Department of Education said the rule change is meant to protect LGBT students and employees and the department “will engage in a separate rulemaking to address Title IX’s application to athletics.” Hutchinson said last year he believed the Title IX changes would be a “detriment to women’s sports.”