JOHNSON CITY, Tenn. (WJHL) — A state representative has advised East Tennessee State University (ETSU) to remove any references to LGBTQ people being a “protected class” under the federal Title IX law. Between Thursday morning and Thursday afternoon, the university had done just that on at least one webpage.
In an Aug. 22 letter to President Brian Noland, Rep. John Ragan (R-Oak Ridge) advised ETSU to “immediately revoke and/or remove any publications, policies and website entries for which your institution is responsible that state of imply that LGBTQI+ students, etc., are a protected class under Title IX.”
Ragan’s letter gives ETSU until Friday to “advise my office … that you have completed any required actions.” It points to a July federal court ruling that stopped Tennessee and several other states from implementing any actions related to Title IX and LGBTQ students. Ragan told News Channel 11 he sent the letter to all state public universities.
He said he looked through some universities’ websites and found language related to Title IX and sexual orientation/gender that doesn’t actually align with the Title IX law. Ragan said a recent court decision related to the issue actually prevents educational institutions from linking Title IX, which was implemented in 1972 and related to women’s equality, to sexual orientation and gender.
“I found some concerning issues in those policy statements on the websites as well as ones that were forwarded to me,” Ragan said. “That led me to ensure that they were aware of this court decision concerning Title IX.”
News Channel 11 asked Ragan whether he would want ETSU to remove a statement on its Title IX webpage. It describes the law as protecting “individuals of all genders and sexual orientations and applies to students, faculty, staff … and other participants in University educational programs and activities.”
“My advice to the university, and this is my personal advice right now, would be to reword that,” Ragan said. “The way it’s worded right now is confusing and in fact it conflates, just like the U.S. Department of Education did, Title VII and Title IX guidance.”
Kate Craig, an ETSU graduate, Democratic state senate candidate and member of the LGBTQ community, called Ragan’s request “incredibly sad, tragic and dangerous for students at ETSU, because the protections that ETSU has offered to students, that does fall under Title IX,” Craig told News Channel 11.
By late Thursday, the webpage News Channel 11 showed Ragan had changed and no longer referenced gender or sexual orientation.
In his comments about conflating two laws Ragan was referring to a June 23, 2021 letter from the U.S. Department of Education that Ragan says “admonished recipients” that their Title IX obligations included LGBTQ students. Title IX is a 50-year-old federal law that prohibits sex-based discrimination in any education program that receives federal government funding.
Traditionally, interpretations applied primarily to women having equal rights to men. But a June 16, 2021 news release from the department says Title IX enforcement would now include discrimination based on sexual orientation and on gender identity.
What changed and the debate it’s created
The education department based its 2021 decision on the 2020 Supreme Court “Bostock v. Clayton County” ruling, in which conservative justice Neil Gorsuch wrote a 6-3 decision that prohibited discriminating against a person based on sexual orientation or gender identity.
The ruling cited another law, Title VII, but the education department interpreted that decision to apply to Title IX. In its guidance to educational institutions it said the ruling meant “it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex (the foundation of Title IX).”
The June 2021 letter to universities, according to Ragan, threatened funding withdrawal for universities that didn’t comply.
“Universities get a huge amount of their funding from the federal government, either directly or indirectly,” Ragan said. “There’s research grants, there’s Pell grants, there’s student loans … and so if they choose to cut that off, then the universities are in a financial bind that is almost insurmountable.”
That is why his letter states that “many of our state’s colleges and universities have rushed to change publications, policies and websites,” Ragan said.
Craig had the opposite viewpoint, accusing Ragan of threatening universities.
“You threaten their funding,” she said. “You’re attacking the LGBTQ community. So it’s part again of a slate of hate that’s coming out, because they’re finding every way shape or form to make it more difficult that if you identify as being gay, lesbian, bisexual, trans, if you identify under any of these labels, then they’re wanting to make it more difficult to exist here.”
Legal opposition to the Department of Education ruling led by states including Tennessee has resulted in a July 15 decision by Judge Charles Atchley, a federal district court judge in East Tennessee. Atchley’s decision enjoins and restrains the federal government from implementing the education department’s interpretation and orders.
Atchley’s decision, which can be appealed, agreed with the states challenging the Title IX interpretation, who argued the education department’s directives “improperly expand the reach of Bostock.“
Ragan chairs the Tennessee House Government Operations Committee. State law requires agencies subject to review under Chapter 29 of Tennessee Code Annotated Title 4 to submit to that chairholder a list of any policies they’ve adopted each July 1.
Ragan’s letter says that because of the July 2022 injunction, college and university “publications, policies and websites” aren’t required or even authorized by law to “state or imply” that Title IX protects LGBTQ students. Ragan wrote that keeping any references or policies while the injunction stands “could be interpreted as violating state law.”
He said some universities submitted their policy changes on time, and others have responded to his August letter.
Ragan told News Channel 11 that he wants Tennessee universities to keep Title IX and sexual orientation/gender separate even if the Atchley decision is overturned and courts rule that the Department of Education can hold funding back from schools that don’t extend Title IX protection.
“They threatened to withhold funding if they (universities) didn’t do something,” Ragan said of the Department of Education. “That is not an order. In fact that comes quite close, frankly, to coercion and maybe blackmail in the vernacular parlance.”
He said the 10th Amendment should protect the universities even in the case of a change at the court level.
“The federal government does not have the power under our U.S. Constitution to run states,” Ragan said. “It’s been a long held Supreme Court tenet that the federal government cannot force states to enforce federal law, hence we have something called sanctuary cities scattered around the country. And we also have the Supreme Court cases that the federal government cannot tell states how to spend state tax dollars.”
If universities choose not to comply with Ragan’s “advice,” he said he would follow up with a second letter. Any consequences for ongoing non-compliance would be up to the entire legislature, but Ragan left open the possibility of running recalcitrant institutions through his committee, which he said has the power to “sunset” government agencies.
“While we don’t in the legislature run the organizations, we do have the ability under the law … to hold them accountable up to the point of dissolving them and reconstituting them if necessary.”
Craig said she’s seen ETSU grow more concerted in its efforts to promote diversity since she graduated.
“As a member of the community it’s incredibly disheartening to see what’s happening,” she said, referring to numerous measures dealing with sexual orientation and gender issues. “Even though they’re saying, ‘oh, this doesn’t really affect students and it’s not anti-LGBTQ, it absolutely is, because otherwise why call it out? This is a continued push to attack the LGBTQ community.”
When asked for comment, ETSU spokesperson Jessica Vodden said ETSU isn’t prepared to speak about the letter as its legal team continues to review the request. In an email response, she wrote “we will respond as requested.”
The letter from Ragan to Noland can be viewed here:
(This is a developing story.)