Federal finding over Minnesota's trans athlete policy sets up 'long legal fight'

NINA MOINI: The Trump administration says Minnesota is in violation of Title IX due to a policy that lets transgender student athletes compete in sports consistent with their gender identity. Title IX is a federal law that prohibits discrimination on the basis of sex in programs that receive federal funding.

The feds say Minnesota must end its policy by Thursday or risk losing federal education aid. Previously, Minnesota Attorney General Keith Ellison has argued that the policy is consistent with the Minnesota Human Rights Laws. Joining me to break this down is Jessica Heiser, a Minnesota-based education civil rights lawyer with Imprint Legal Group. Thank you so much for your time, Jessica. I appreciate it.

JESSICA HEISER: Thank you for having me. My dad is going to be very excited to hear me on MPR today.

NINA MOINI: Oh, I love that. That's like 90% of people, are like, my dad or my mom. Well, we're really happy to have you and your expertise. I want to start at the beginning with, if you would, just break down for those who aren't familiar, what is Title IX? Tell us about the law and maybe some misconceptions about it.

JESSICA HEISER: I think most people think of Title IX as applying to sports teams for college girls, but at its heart, Title IX really just says everybody should be able to access their education equally, regardless of their sex.

So this might apply to things like female and a male student who have an on again, off again relationship, and they're discovered engaging in oral sex on a school bus, and another student posts a video of that conduct on social media, and the female student or the male student does not want to attend class or go to school anymore.

It might apply to a teacher or a coach at school who says inappropriate things to students or interacts with them inappropriately and creates an educational environment that student doesn't want to participate in anymore. So it's a very broad statute. Although it's a very short statute. The actual statute of Title IX is only about 37 words long. It's very small statute. But it has huge implications for how students are able to access their education all the way from K through 12 into higher education as well.

NINA MOINI: And so as it relates to Minnesota, how long has Minnesota allowed transgender student athletes to compete in sports consistent with their gender identity? And what's your understanding of how that applies to Title IX?

JESSICA HEISER: So Minnesota's human Rights Act was revised in 1993 to explicitly include gender identity first in the nation to do that, and so about half of the states have followed. But Minnesota was really a trailblazer with adding some nondiscrimination protections for individuals based on gender identity.

And then, the Minnesota State policy for high school sports was amended in 2015 to allow transgender athletes to participate on the team of their gender identity, with some parameters involved there. But this has been a pretty long standing policy when you think about protections for people based on gender identity.

NINA MOINI: What stands out to you about this ruling in particular. I mean, earlier this year, President Donald Trump issued an executive order effectively barring transgender athletes from participating in female sports. Is this new ruling the next step?

JESSICA HEISER: I think what we're seeing is President Trump's administration try a lot of different legal tools available to them. We have seen the administration utilize executive orders. We've seen them utilize the polling of federal funding. We've seen them utilize litigation and lawsuits. And so I think what we're seeing here is, they issued the executive order.

The executive order was basically denied or ignored gnawed by Minnesotans' attorney general who came out and said, this conflicts with state law. We are not obligated to follow the executive order.

And so the Trump administration is now moving to another legal tool in their toolbox, which is to use the US Department of Education and HHS to essentially say, we find you in violation of Title IX. We're going to revoke federal funding unless you get in line with what we say should happen around transgender athletes in Title IX. So a little bit of a whack-a-mole situation going on. The administration is just trying all different kinds of approaches and seeing if one of them can stick.

NINA MOINI: And meanwhile districts we know are not in great situations either. A lot of people are facing funding, shortages, and that idea of taking away aid, taking away funding makes people understandably nervous.

Last Thursday, the Forest Lake School board sent a letter to the state urging the state to comply with the ruling, saying that it would, again, jeopardize some of the federal funding that the district could get. So what would happen if the state refused to comply or continue to refuse to comply. Does that federal funding just go immediately? Or, what happens to those districts?

JESSICA HEISER: There's going to be a long legal fight. And if I was general counsel for any of those school districts who are scared about this-- and I think it is a very scary situation when you talk about pulling federal funding, that is the big stick. We think about carrots and sticks. That's the big stick when it comes to thinking about OCR, and it's scary for a reason. It's meant to make school districts sit up straight, jump when they're told to jump up.

But the reality is it's a long legal fight to actually take away federal funding from school districts. It's years in the process of negotiations back and forth, and we from the inside that those negotiations take years. So while I very much empathize with the fear and the fear tactics being used around this idea of taking away federal funding, it's important to remember that number 1, most K through 12 school funding does come from state and local sources.

Most school districts are not dependent on federal funding, although federal funding does make up a huge bulk of our special education and Title IX funds-- I'm sorry, Title I funds. But the other thing to really keep in mind is, it takes a long time to go through this process, and there's a lot of legal battle to come, and I don't think we're going to see an outcome anytime, especially soon, that would actually look like federal funding being pulled.

NINA MOINI: And you mentioned the OCR, the Office of Civil Rights there at the US Department of Education, and I understand that you used to work with them. And so I'm wondering about when you're saying things could take such a long time. We know an administration is four years. Do you think some of these types of issues could be litigated around or talked around for the entirety of that time?

JESSICA HEISER: Absolutely. I mean, I worked at OCR, the Office for Civil Rights, as a baby lawyer, and I saw investigations that took years. I then spent a lot of my career defending school districts from OCR complaints, and I can tell you that it was not unusual to have open investigations that took four, five, seven, even eight years.

So for those of us that have to do this on a daily basis, we know that OCR investigations and the threat of pulling federal funds if you do not comply with the administration is a years-long nuanced intricate process where lawyers are negotiating back and forth on what kind of comma goes where in a resolution agreement and what kind of wording gets changed, and it's a very intricate process.

So this feels like a smash-and-grab-style, bull-in-a-China-shop, headline-grabbing style, as opposed to what OCR typically does, which is work in conjunction with school districts and with high school interscholastic leagues to develop something that is more of a compromise and works for everybody. And that takes a really long time because lawyers, we like to talk, and we like to red light things.

NINA MOINI: Jessica, thank you so much for your perspective. That's really helpful, and we really appreciate your time. Thank you.

JESSICA HEISER: Thank you so much for covering this.

NINA MOINI: That was Jessica Heiser, a Minnesota-based lawyer who focuses on civil law issues in education.