East Tennessee State refuses to discriminate regardless of court order on Biden guidance

East Tennessee State University tweaked an online description of federal protections for LGBTQ students, in response to a request from state Rep. John Ragan, but the university reasserted its non-discrimination policy stands for all students regardless of sexual orientation or gender identity.

In response to a letter Joint Government Operations Committee Chairman John Ragan sent to universities across the state, ETSU said it changed the definition of Title IX protections published online to comply with state law. Essentially, it dropped references to gender discrimination and protections for all genders and sexual orientations in describing Title IX, a federal civil rights law.

Federal guidance from the Biden Administration in 2021 made LGBTQ students a protected class until a federal judge this July put a hold on the rules amid litigation.

“However, ETSU has several policies that prohibit discrimination and our university’s non-discrimination policy remains unchanged,” ETSU spokesperson Jess Vodden said in a statement. 

As published on its website, the ETSU prohibits discrimination, harassment and sexual misconduct based on any federally or state protected classes, including race, color or ethnicity, sex, sexual orientation, gender, gender identity or gender expression, national origin, marital or parental status, religion, age, disability, veteran status and/or genetic information in education programs or activities and employment. The policy applies to all levels and areas of university operations and program as well as to undergraduate and graduate students, administrators, faculty, staff, volunteers, vendors and contractors.

“The courts are currently determining whether sexual orientation and/or gender expression is considered a protected class under Title IX at universities across Tennessee and the nation. Regardless of that outcome, ETSU’s policy prohibiting discrimination of any kind remains in effect,” Vodden said. “Core to ETSU’s mission and values is the declaration that people come first, are treated with dignity and respect, and are encouraged to achieve their full potential.”

ETSU’s previous version of Title IX includes the words “all genders and sexual orientations.”

ETSU’s new version of Title IX removes references to “all genders and sexual orientations.”

Former Tennessee Attorney General Herbert Slatery, who left office last week, led a group of state attorneys general nationally to turn back the federal guidance, filing suit in East Tennessee federal court. U.S. District Court Judge Charles Atchley issued an order in late July saying federal guidance by the Biden Administration “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws” restricting transgender athletic competition and use of restrooms matching students’ gender identity.

Gov. Bill Lee signed a bill into law this year prohibiting transgender athletes from playing women’s college sports. Title IX is a federal law protecting people from discrimination based on sex in education program or activities the receive federal financial assistance.

In May, a federal judge struck down a new state law forcing businesses to post warning signs if they allow transgender people to use restrooms matching their gender identity. The state also enacted a law prohibiting transgender students from using restrooms and locker rooms that match their gender identity.

East Tennessee State made the response after Ragan sent a letter to universities notifying them they should “revoke and/or remove” any publications, policies or website entries implying that LGBTQ students are a protected class after a federal court put the Biden Administration’s guidance on hold. Any such changes “could be interpreted as violating state law,” Ragan said in his letter.

The Oak Ridge Republican told universities to respond to his request by Sept. 2. He also pointed out the U.S. Department of Education threatened to withdraw federal funding from universities if their Title IX obligations included LGBTQ students.

A spokesperson for the House Republican Caucus pointed out Ragan had the authority to send the letter to universities because Tennessee agency policy changes stemming from federal guidance fall under the Government Operations Committee’s oversight. 

According to state law, agencies under the Government Operations Committee’s scrutiny are to submit a list of new policies by July 1 to the Senate and House chairs of the committee.

Ragan received criticism from the Tennessee Equality Project, an LGBTQ advocacy group, and Democratic colleagues who claimed he didn’t have the authority to give orders to state universities.

Ragan’s letter not only asked agencies to submit a list of changes based on the federal guidance but ordered universities to remove them.

University of Tennessee system President Randy Boyd responded to Ragan’s Aug. 22 letter by confirming it didn’t modify its publications, policies or websites relating to Title IX in response to a June 2021 letter from the U.S. Department of Education or the July federal court injunction.

“Further, as we have previously discussed, we do not believe anything in our current policies, procedures, or statements relating to Title IX or non-discrimination violates either federal or state law,” UT President Randy Boyd said in his letter.

Middle Tennessee State University released a statement Wednesday saying it received the letter from Ragan but did not modify its publications, policies or websites related to Title IX in response to the Department of Education guidance. Thus, no adjustments were needed because of the federal court injunction, according to the statement.

But ETSU counsel Mark Fulks sent Ragan a letter stating the university didn’t change its Title IX compliance rule in response to guidance from the federal government in June 2021. He pointed out that ETSU filed its compliance rule with the Secretary of State’s Office in May 2021, well before the federal guidance came down.

“Separately from our Title IX Compliance Rule, the university has had existing policies that prohibit discrimination because of sexual orientation and gender identity since we became independent of the Tennessee Board of Regents,” Fulks wrote.

From March 2017 until January 2020, East Tennessee State followed Tennessee Board of Regents policy, which prohibited discrimination because of sexual orientation and gender expression, according to Fulks.

In October 2021, ETSU adopted a policy prohibiting discrimination, harassment and sexual misconduct based on sexual orientation, gender identity and many other things, enabling it to remain consistent with the Southern Association of Colleges and Schools Commission on Colleges’ position, according to Fulks’ letter.

Fulks also pointed toward the university’s Employee Code of Conduct, which states: “ETSU is committed to the core values of people, relationships, diversity, excellence, efficiency, and honesty, as well as to creating a university community committed to integrity, respect for diversity, engagement in the community and non-violence.”

In addition, ETSU as an employer is governed by Title VII of the Civil Rights Act of 1964, prohibiting discrimination against applicants and employees based on sexual orientation or gender identity and expression, Fulks pointed out. 

Fulks Response by Anita Wadhwani on Scribd

John Ragan Letter by Anita Wadhwani on Scribd