Little girl living in poverty.

Tackling intergenerational poverty at Utah’s Legislature

How can Utah encourage the private sector to help children in intergenerational poverty?

HB 24 offers the hope to children in intergenerational poverty that their parents’ poverty and a lack of savings will not dash their dreams of a college education,” said Christine Cooke, Sutherland Institute education policy analyst. “By encouraging self-reliance and private donations to college savings accounts for children in intergenerational poverty, this legislation ensures that children who overcome the significant educational barriers of intergenerational poverty will get a chance at a successful life through higher education.”

How can public education meet the unique educational needs of children in intergenerational poverty?

HB 168 is good policy because it requires extended-day kindergarten program to meet the unique early childhood needs of children in intergenerational poverty, who need these programs the most,” Cooke said. “While research shows that the effectiveness of expanding kindergarten for all children is questionable, it also shows that it is most effective for the most-at-risk children. In Utah, that is clearly children in intergenerational poverty.”

How can Utah make it easier to escape intergenerational poverty?

HB 294 is good policy because it tears down barriers to a person in intergenerational poverty once they have prepared themselves for a life of self-reliance through academic success and are ready to pursue full-time employment,” said Sutherland Institute director of public policy Derek Monson. “The transition from inherited poverty to sustainable employment has enough personal, cultural and social barriers for those in intergenerational poverty without adding to that an income tax policy that takes away some of the financial reward of working. This legislation sends the message that Utah intends to help those in intergenerational poverty help themselves out of poverty, whenever they are able and ready to make that transition.”

How can Utah connect our best teachers to children in poverty?

“Good teachers deserve to be rewarded, and HB 212 forwards that value while sending the message that it is not how long you last in the classroom, but how well you perform that defines good teaching,” said Cooke, who is also a former teacher in Utah’s public schools. “This legislation also ensures that we are connecting our best teachers to the children who need them the most – children living in poverty. HB 212 is good policy because it constructively engages education leaders in re-thinking the teaching profession – both pay and morale – and fills a resource gap for Utah’s most-at-risk children.”

Utah State Capitol Building  in Black and White

Testimony in favor of Senate Bill 196 (Health Education Amendments)

Statement as prepared by William C. Duncan, senior fellow at Sutherland Institute, who testified in favor of SB 196 – Health Education Amendments, on Feb. 21, 2017, before the Senate Education Committee of the Utah Legislature:

The core policy of Utah as it relates to sex education today recognizes that marriage is the only appropriate setting for sexual activity and that this subject is best understood when parents are highly involved in that education. If Senate Bill 196 were approved, that would still be the policy of the state.

So, what would change? The state would not be singling out an identifiable group in the statute. That would mean, practically, that the state would not be vulnerable to a lawsuit challenging that provision, which under current Supreme Court precedent, might invite federal court micromanagement of Utah’s curriculum.

Illegal Young man Spraying black paint on a Graffiti wall. (room for text)

Testimony in support of HB 239 (Juvenile Justice Amendments)

Testimony given by Derek Monson on Feb. 10, 2017, in support of HB 239 (Juvenile Justice Amendments) before the House Judiciary Committee of the Utah Legislature:

Thank you, Mr. Chair and members of the committee. My name is Derek Monson and I represent Sutherland Institute.

Sutherland Institute supports HB 239 because one of its major thrusts is to tap into and strengthen families to find community-driven solutions to problems of juvenile justice.

One of the temptations in criminal and juvenile justice policy is to view families as a problem, and subsequently to take the easier path of ignoring or going around families. But we think the right policy approach is a road “less traveled,”[1] which views families as a solution. That approach has the potential to find answers that are practical, because they work from the ground up within communities, and answers that are sustainable, because they don’t require unending allocations of taxpayer dollars.

We see HB 239 as reflecting this approach, and as a result its impact will be to strengthen families that need help, spend taxpayer funds more cost-effectively, and help children whose future should point to a life of success and happiness despite mistakes, not toward juvenile detention because of their mistakes.

We encourage you to support HB 239. Thank you.

[1] Robert Frost, “The Road Not Taken,” 1916.


Young African American family having fun while drawing together at home.

3 Things the Family Prosperity Index shows Utah legislators

By Krisana Finlay

This Utah legislative session covers 1,200-plus bills, and with only 45 days to cover them all, legislators need to know what issues matters most.

Luckily the newly published Family Prosperity Index (FPI), of which Sutherland gave a recent general overview, gives legislators a few things to keep in mind.

  1. Thanks in part to Utah legislators, Utah ranks No. 1 in the nation for family prosperity.

It’s important to remember where we are doing well, and as a whole, Utah surpasses all other states with flying colors. It takes the national lead in five of the six FPI major indexes. In the economics category Utah comes in second to North Dakota, thanks to that state’s fracking boom, which affected the statistics this year and since then has reportedly declined.1

Why is Utah ranked No. 1 nationally?

Utah citizens and lawmakers uphold the cherished principle that family is the fundamental unit of society. This fundamental unit is the driving force behind everything they do – framing how they go about the day’s work and the night’s play. All is geared toward building strong families. Strong families facilitate functional cultures, capable communities and enriched economies. And the FPI proves it.

Utah is experiencing true prosperity considering its robust scores on almost all major prosperity index scores. But all of its flying banners of success cannot discount two areas of real concern: self-mortality overall, and conditions in Salt Lake County.

  1. Utah Legislators need to take an uncomfortable but direct look at self-mortality.

Utah does well in the major index of family health. We’re in the top 10 states for low rates of tobacco, alcohol, and obesity, illicit drug use, sexually transmitted disease rates, and high rates of infant survival. But Utah has a serious problem with self-mortality, ranking 45th in the nation because of its suicide and drug-overdose rates.

Suicide Rates

It’s bad. Utah’s suicide rate has consistently measured above the national average and has accelerated at a faster rate, increasing 43 percent between 2000 and 2014 (the national average increased 29 percent).1 Leaders have been confounded when it comes to resolving this problem, in part from the myriad risk factors: domestic violence, bullying, alcohol or drug abuse, local epidemics of suicide,2 increased elevation, or feeling constrained when it comes to seeking help.3

This combination of risk factors may be providing the perfect storm. Domestic abuse, high stress in school or work, high expectations, addiction, and technology offering counterfeit connections instead of real relationships and resources may cause a person to consider dire alternatives.

Drug-Overdose Rates and Opioid Addiction

Utah’s drug-overdose rates are also a concern. Utah’s rates have been higher than the national average, although growing at a slower rate.1 Luckily, the 21st Century Cure Act Congress passed just last December offers help. This bipartisan legislation takes a comprehensive approach in solving opioid overdoses and distributes $1 billion of its budget to states to address local health concerns. This funding distribution will take place early this year, in perfect timing for the Utah legislative session.

U.S. House Speaker Paul Ryan in a recent town hall meeting commented, “We have to have a full-front war against this opioid epidemic, and that is exactly what we passed and funded.” Along with that help, Salt Lake County must also solve some full-front wars of its own.

  1. Salt Lake County needs help

The most populous county in the state, Salt Lake County reports having a higher violent crime rate, higher rate of families with children below poverty level, and the lowest level of married taxpayers in the state. It also had 4,412 of the 9,687 unwed births in the state (46 percent).1

To answer the why behind these statistics, the FPI offers the following insight, citing a 2012 domestic policy report from The Heritage Foundation:

“Not surprisingly, many of these factors are interrelated. For example, children from single-parent homes, emanating from a high unwed birth rate, are more prone to criminal activities in youth (more than twice as likely to be arrested) and young adulthood (three times more likely to be in jail by age 30) relative to children from intact married families.” 1

A guide to resolving self-mortality and Salt Lake County concerns

Boyd Matheson recently said, “In areas where we lack effective solutions it is usually because we are avoiding uncomfortable conversations.”

Taking on these uncomfortable conversations will inevitably cause leaders to engage with various community participants: community officials, families, churches, industry professionals, and other legislators. These engagements will bring understanding and naturally community-driven solutions.

Simply put, community problems require community engagement. Community engagement brings community solutions. Community solutions bring community prosperity. We applaud and encourage community officials who initiate difficult conversations in the hopes of resolving family health and Salt Lake County problems.


All in all, Utah is doing incredibly well in regard to family prosperity. FPI authors wrote, “[I]t’s not even a close race with Utah’s dominating performance on the FPI across nearly every major index.”1

Utah holds a high standard for true prosperity. It leads the nation because Utah residents understand the family is the economic engine of society. The stronger the family, the stronger the engine, and the further Utah will go amid whatever lies ahead. As legislators look to resolve Utah’s unique struggles, a prosperous and enduring community will result. Such endurance and strength only comes through sustaining core principles, ones that Sutherland is committed to uphold.



  1. P. Warcholik and J.S. Moody, Utah Family Prosperity Index, January 2017, American Conservative Union Foundation, website.
  2. “Complete Health Indicator Report of Suicide,” July 15, 2016, accessed January 12, 2017,
  3. L. Price, “Utah officials unsure why youth suicide has nearly tripled since 2007,” Salt Lake Tribune, July 3, 2016,


Utah ranks #1 for family prosperity

A joint project by Sutherland Institute and the American Conservative Union Foundation found Utah ranks first in the nation according to the Family Prosperity Index, or FPI. The FPI measures more than 50 of the economic and social factors that indicate family prosperity, including but not limited to marriage and divorce rates, crime rates, STD rates and household income. A state that scores well on the FPI is one that is moving toward the goal of creating family prosperity. 

This new study found Utah dominates the 2016 Family Prosperity Index, not only ranking at the top but also holding commanding leads over the second-ranked state and the national average. In fact, Utah’s FPI score has increased by 3.6 percent over the last five indexes – from 7.12 in 2012 to 7.38 in 2016. The FPI national average is normalized at 5.0. 



From Sutherland Institute President Boyd Matheson:

“Of all the awards and accolades Utah has received, this may very well be the most significant. While Utah has long recognized family as a critical social engine, this report illustrates the power of the family as an economic engine. Lawmakers would be wise to recognize that just as a strong economy helps families, strong families strengthen economies.” 

From Sutherland Institute Director of Public Policy Derek Monson:

“Rather than measuring and ranking a stand-alone niche of Utah’s economy that many never see or experience, the Family Prosperity Index measures whether Utah’s economic prosperity is reaching Utah’s families, and how Utah’s families are driving Utah’s economic prosperity. Clearly, Utah has room to improve in its most populous county when it comes to the related issues of drug use and suicide – and these are critically important things that demand our attention. But Utahns can be proud in our understanding that we lead the nation economically because we lead the nation in how we create, build and devote ourselves to our families, and by extension our communities.”

From American Conservative Union Foundation Chairman Matt Schlapp: 

“The Family Prosperity Index provides a blueprint for creating an environment for families to flourish, and Utah, with its No. 1 rank on the 2016 FPI, has set the standard for the rest of the country. I hope leaders across the county will come to understand the factors driving Utah’s success and use the FPI as a tool to expand prosperity in their own states.”


  • Six indexes (and their corresponding sub-indexes) make up the FPI: Economics, Demographics, Family Self-Sufficiency, Family Structure, Family Culture, and Family Health. All sub-indexes can be viewed in the attachment.
  • Utah takes the lead in every index aside from Economics, where North Dakota comes in first. This data was impacted by North Dakota’s fracking boom, which has since slowed.
  • An area of concern for Utah includes the drop in the Family Health index caused by the self-mortality sub-index, which consists of suicide and drug overdoses as a percent of population. Utah has higher-than-average rates.
  • Additionally, a county-level FPI analysis raises alarms for Salt Lake County. Negative trends are noted when it comes to children in poverty, violent crime rate, property crime rate, the level of married taxpayers, and unwed child birth.


Vision for Religious Freedom

True equality requires the protection of religious liberty. Religious freedom ensures equal treatment for all of God’s children.

To understand the former, one need only contemplate the contradiction in values, morals and logic contained in this scenario: A demand for equality leads to legal protection of an individual’s right to their core belief and expression regarding sexuality, but leads to legal prosecution of another individual for exercising their right to their core belief and expression regarding God. That is, in fact, a form of intolerance and inequality masquerading as equality.

To understand the latter, one need only ponder the historical fact that religion was a driving force behind the abolition of the English slave trade, the emancipation of American slaves, and the American civil rights movement. Reverend Martin Luther King, Jr. did not lead America’s civil rights movement in spite of his religious identity, but because of it.

Very early on in America’s history, Alexis de Tocqueville noted: “Religion, which, among Americans, never mixes directly in the government of society, should therefore be considered as the first of their political institutions; for if it does not give them a taste for freedom, it singularly facilitates their use of it.”[1] Part of what Tocqueville meant is that religion shapes the experience of citizenship. It is easy to see then, why the freedom to practice religion is critical to the nation’s order and character.

The interconnectedness of religion, equality and freedom is uniquely American. Other nations have viewed religious freedom in different ways. The French Revolution’s 1789 Declaration of the Rights of Man had a “religious freedom” provision, which subordinated the right to the perceived interests of the state: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” This approach allowed for unfettered freedom to believe, but severely constricted the ability to act on or express that belief.

Even the charter of the Soviet Union guaranteed “freedom of religious worship,” which looked nothing like what Americans would recognize as freedom. The governing principle of Communist Russia was that everyone was free to believe what they would like, but with the caveat that expressing those beliefs in contradiction to the laws and will of the state would be severely punished. In practice, even the guarantee of freedom of belief was never honored.

Contrast the foreign ideas of freedom of religious views and religious worship to the American principle of religious freedom. Religious freedom is core to the way Americans constitute ourselves as a people. The pursuit of religious liberty motivated the establishment of America’s second English colony in 1620 in Plymouth, Massachusetts. Religious freedom also holds a unique place in our constitutional order: It is literally the first freedom protected in the Bill of Rights.

Religious freedom in the Constitution is found in two places. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There is also a provision in the text of the original Constitution, less remarked upon, but no less important. Article VI says that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Taken together, these provisions, and similar ones in the constitutions of each state, show that the American ideal is one of robust protection for religious belief, worship and expression in the public square. These protections include three connected principles:

  1. All human beings should be free in their religious beliefs and practices without suffering persecution or official discrimination, except in the rare instances where a religious practice compromises a compelling governmental interest (e.g., protecting innocent life).
  2. Religious organizations must be free to determine doctrines and practices, including standards for membership, and to carry out their activities without government interference.
  3. No one should be forced by the government to affirm or support beliefs to which they do not freely ascribe.

Despite the robustness of the American principle of religious freedom contained in the Constitution, limited conceptions of religious freedom have their advocates in the modern United States. There has been a rhetorical shift among some to speak of a “freedom of worship.” This means that churches and individuals can believe and teach what they like, and perhaps even select their own clergy and perform their own ceremonies, but this “freedom” essentially ends outside the door of the meetinghouse, mosque, cathedral or synagogue.

For instance, a prominent government official recently argued that religious freedom was merely a “code word” for darker motives, such as hate for a particular group of people – the implicit suggestion being that the government can restrict the freedom of people of faith if their beliefs conflict with the official government-endorsed ideology: discriminating against religious people because of their beliefs, in the name of anti-discrimination.

A related notion is that other protections, like freedom of speech, are adequate to protect religious people. Thus, a recent Supreme Court decision dismissed concerns about religious organizations and individuals being asked to facilitate conduct at odds with their beliefs by saying that they still have the ability to verbally express their teachings. But the freedom to state one’s core beliefs becomes largely meaningless without its intended companion: freedom to live according to those core beliefs.

A free society prioritizes religious freedom. It recognizes what Tocqueville observed, that religious devotion fosters accountability that, in turn, secures the qualities in citizens that allows for a broadly tolerant and pluralistic community that is both safe and open. It also recognizes America’s historical reality: that religion is tied to equality, and without religious freedom equality would not exist in its current form in America.

With very rare exceptions – the damaging effects of which can be alleviated by existing constitutional principles – religion inculcates in its adherents a spirit of civility and public-spiritedness that allows a free society to flourish. It motivates individuals to come together to care for those who are less fortunate and to protect those otherwise excluded from the bounties of a prosperous nation.

Religious freedom is a foundation of a decent, equal and free society.


[1] Alexis de Tocqueville, Democracy in America 280 (translated by Harvey C. Mansfield & Delba Winthrop, 2000).


December’s milestones of religious freedom: from Becket’s martyrdom to Bill of Rights

The action of T.S. Eliot’s play Murder in the Cathedral takes place right after Christmas in 1170, culminating in the martyrdom of Thomas Becket on Dec. 29. Though only touched on incidentally in the play, which is far richer than a political tract, the story of Thomas is an archetypal struggle between secular and religious privileges. Though the details are now obscured in history, among the chief points of contention between King Henry II and the archbishop was the question of whether the church could be made subject to the power of the state.

These tensions have not disappeared, of course, though the form they take in our time is far less violent. Some of our current disagreements in this arena are far different in magnitude but not so different in kind. For instance, can the state mandate actions that advance its purposes on religious groups whose teachings and practices are at odds with the state’s goals, like widespread distribution of abortifacients or contraceptives?

Joining these disputes are ones that would become familiar in England and Europe a few hundred years after Becket’s death – can individuals be punished for acting on their beliefs when those beliefs and actions run afoul of current government ideology?

A much more recent source of dispute is the claim that the mildest kinds of public display of religious expression threaten a necessary secularity of the state – premised on an expressed ideal of neutrality but which feels increasingly like hostility.

That current tensions are worked out more peaceably is, in no small part, due to a development that also has a December anniversary.

The Bill of Rights was ratified 225 years ago, on December 15, 1791. Its First Amendment led with two provisions meant to end, or at least ameliorate, the tension between church and state. The Establishment Clause prevented the creation of a national, state-sponsored church, such as England had. Though some states maintained established churches for a few decades, the spirit of non-establishment eventually prevailed universally in the United States.

At least on paper, then, the problems of individuals being punished for failing to conform to an official doctrine, was alleviated, and this protected the church from the rival claims of state power.

The next clause of the First Amendment, necessarily intertwined with the first, addressed the problem of government exactions that punish the actions of those who act on their religious beliefs when those actions are officially disfavored.

Each week in the news, and at least once each term of the Supreme Court, these kinds of conflicts are still in evidence. But they are not handled by a head of state giving a wink and nod to dissolute allies who try to settle it with violence. In the United States, at least, failure to attend an official church is not punishable by fines or imprisonments.

Conflicts are handled in legislatures and elections and in courtrooms. That is real progress for which we should be very thankful.

(It may be the case that our legalistic culture has spawned new conflicts, like the perennial debate over Christmas displays, that would not otherwise have arisen, but here too the conflict is peaceful and still amenable to reasonable discussions.)

A multi-ethnic group of elementary age children are sitting at their desk and are taking a test in class. One boy is smiling and looking at the camera.

Op-ed: After the election: A new education vision

Originally published in the Deseret News.

Human beings are magnificent. We ask, wonder, reason, reflect and change. We are created to learn. As Aristotle put it, “All men by nature desire to know.”

With a divisive election behind us, we have an opportunity to move toward substantive discussion and elevated dialogue about principles and policies in our communities, especially regarding how we approach education.

While real debate about how to improve public education was lost amid both sides’ extreme campaign rhetoric, Americans continued to live the realities of our education system. They experienced, and continue to experience, excessive testing, one-size-fits-all classrooms, a lack of alternative options, teachers leaving the profession after only a few years on the job, inequities in access to quality schools, low scores on national and international tests, and heavy-handed federal initiatives.

Behind these realities is one ultimate question: Is our education system designed to encourage the learning of children, each of whom has unique interests and learning needs? It’s telling that, perhaps in answer to this question, enthusiastic education reformers exist on both the right and the left sides of the political spectrum.

The promise of a renewed education dialogue rests on two main ideas: (1) education requires that we meet the unique needs of the child; and (2) education calls for the empowerment of parents, students and taxpayers to create learning paths as unique as each student.

Noam Chomsky said, “A public education system is based on the principle that you care whether the kid down the street gets an education.” But what type of education? America doesn’t need the destruction of public education, but its transformation. Every kid down every street should have the opportunity to learn in a way that unlocks his or her innate potential. Anything less is a misuse of public funds.

To make education work for the individual, states should pursue a flexible education spending policy that allows parents to use their child’s state funds to purchase a variety of academic options like tutoring, textbooks, curriculum, exams, tuition or therapies. It should first prioritize students from families that qualify for free and reduced-price lunch, children from families experiencing intergenerational poverty; special-education students; children who have been adopted or are in foster care; or students residing on Native American reservations.

States should pursue local control through tools like “assessment choice,” where districts choose tests that best fit the needs of their students and their demographic realities from a menu of approved assessments. Excessive testing, data privacy and the influence of assessments on instruction worry many parents. The level of government closest to the student’s family — where parents are empowered, not sidelined — should determine which tests students take.

Education policies should break arbitrary barriers to learning. Instead of first seeking to raise taxes, educators should empower students to progress at their individual pace — the philosophy behind “competency-based education.” It’s worth rethinking grade levels, the Carnegie Unit, the classroom, the role of technology and the relationship between funding and enrollment. Education leaders should be investing in the ideas of the future, rather than being content to remain invested in the ideas of the past.

Ralph Waldo Emerson said, “The secret of education lies in respecting the pupil. It is not for you to choose what he shall know, what he shall do … he only holds the key to his own secret.” Respecting the pupil is our vision.

Achieving a transformation requires from everyone the best creative, intellectual and interpersonal efforts. Most importantly, it requires leaders and engaged citizens willing to stand up in their own communities and reject a politics of strident voices, character assassinations, cloakroom deals and corruption. We will need space for open conversation and elevated dialogue, the seedbed for great ideas.

All human beings are created with the ability to learn, the desire to grow, the potential to improve and a purpose to accomplish extraordinary things. Education policy and dialogue ought to reflect these truths. And if we each engage in an elevated dialogue about education within our communities, it will be possible.

Legal backgrounder: The Obama administration’s attempt to rewrite Title IX

When Congress enacted Title IX in 1972, it did not intend to give the president or executive agencies a blank check to write dramatically new social policy.

That, however, is precisely what the administration is doing today by announcing that it has reinterpreted that statute to require schools to create new policies on restroom use, so as to accommodate those who would like to use the restroom of the opposite sex.

The administration’s position goes beyond its legal authority. Only Congress can make so fundamental a change in the law. On issues of this magnitude, which implicate issues of the rule of law, safety, privacy, self-government, federalism, and more, the process is critical. The president cannot legislate with a stroke of a pen. Something this important cannot be a matter of bureaucratic fiat.

Forty years ago, Congress approved the Education Amendments of 1972 by 88 percent in the Senate and 69 percent in the House, sending them on to President Richard Nixon for his signature. The heart of that law is Title IX:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Congress has occasionally supplemented and modified the law in the ensuing decades, but in the last few years, something more troubling has begun to occur. It is nothing short of an attempt by the current presidential administration to rewrite this venerable statute without congressional oversight.

The attempt to remake Title IX began recently. In April 2014, the Department of Education issued “guidance” on enforcing Title IX, the law banning sexual discrimination in education, in the context of sexual violence. The 46-page document includes an interpretation of the statute that includes “gender identity”: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.”[1]

In January 2015, OCR issued a dear colleague letter interpreting this document as requiring schools to provide all facilities and services based on the self-identified gender of students. This letter informed an unnamed school official (the information is redacted in the available copy):

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.[2]

The letter referenced two OCR investigations that resulted in out-of-court resolutions.

The first involved Arcadia School District in California. There, OCR investigated complaints of discrimination against transgender students, specifically that “the District prohibited the Student from using sex-specific restroom and locker room facilities designated for boys during his sixth and seventh grade years.”[3] The agreement between OCR and the District required the District to hire a consultant, create a support team at the parents’ request, and

  1. provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  2. provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  3. treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
  4. ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.

At the district level, the school agreed to implement new discrimination policies to “specifically include gender-based discrimination as a form of discrimination based on sex, and b. state that gender-based discrimination includes discrimination based on a student’s gender identity, gender expression, gender transition, transgender status, or gender nonconformity,” revise policies to “to ensure that all students, including gender nonconforming and transgender students, are provided with equal access to all such programs and activities,” provide training to employees on transgender issues and provide reports to OCR.[4]

The second resolution involved a complaint against Downey School District, also in California, and alleged more general harassment of a male student who now identified as female.[5] The resolution agreement requires the district to “continue to treat the Student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students at school, and at all District-sponsored activities, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.”[6] The district was required to enact the same kinds of policies required of Arcadia.

In June 2015, the Department of Justice filed a “Statement of Interest” in a federal case in Virginia which argues the OCR position as the appropriate interpretation of the requirements of Title IX: “The term ‘sex’ as it is used in Title IX is broad and encompasses gender identity, including transgender status.”[7] The case was brought by the ACLU on behalf of a student, born female, but who now identifies as male. The student alleges she was allowed to use the boys restrooms for a few weeks but the school district then enacted a policy that specified bathroom assignments follow biological sex. For students with “gender identity issues” the district designated private facilities. The ACLU says this “segregates transgender students from their peers.”[8]

The district court actually dismissed the claim, saying the OCR interpretation is not a plausible reading of the law and conflicts with an earlier Department of Education regulation that says schools may segregate based on sex, which this court said must include biological sex.[9] The ACLU has appealed.[10]

In another case, in Palatine, Illinois, a boy who identifies as a girl sought access to the girls locker room rather than the private facilities offered by the school. The student filed a complaint with the Department of Education with ACLU help, and OCR told the school it needed to allow the student to use the girls locker room.[11]

These cases are having an impact on other schools’ policies. In Hillsboro, Missouri, despite a student walkout opposing the policy, the high school allowed a male student who identifies as female to use women’s facilities. A news report explains:

Districts that refuse to allow students to use a bathroom for the gender with which they identify could run afoul of the U.S. Department of Education’s Office of Civil Rights, said Kelli Hopkins of the Missouri School Boards’ Association.

“The Office of Civil Rights has issued an opinion that says, if you do this, you have engaged in gender discrimination,” Hopkins said. “At the same time, there is no case law or statute in Missouri that says this is against the law.”

Schools found to have violated a student’s civil rights are at risk of losing some of their federal funding, Hopkins said.[12]

Fairfax County, Virginia, also implemented a policy adding “gender identity” to the district’s discrimination policy after being told OCR could terminate federal funding if it did not.[13]

In December 2015, a federal court in California denied Pepperdine University’s motion to dismiss a lawsuit alleging the university’s basketball team discriminated against two lesbian players. The court concluded, “[S]exual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”[14] The court cited the EEOC guidance on Title VII as support for this conclusion.

Most recently, activist groups have set their sights on religious schools that have sought an exemption from these interpretations of Title IX. Title IX has long allowed schools to request an exemption from the statute if “application of the law would conflict with specific tenets of the religion” so as not to lose federal funding and open themselves to private lawsuits. The exemption will be granted as long as a school can show it is controlled by a religious organization and it identifies which applications of the law conflict with its religious teachings. At the urging of the Human Rights Campaign and others, the Department of Education announced earlier this year that it would “create a searchable database that reveals the names of colleges and universities that have received exemptions on religious grounds from federal civil rights protections.”[15]

Now, on May 13, 2016, the Department of Education and the Department of Justice issued another letter reiterating its claim that Title IX “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”[16] In fact, the letter brazenly asserts that it is not adding “requirements to applicable law.” The letter also specifically invokes the possibility that schools may lose federal funds if they are not in compliance.

Some excerpts from the letter illustrate how remarkably broad and novel the administration’s requirements are:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.


The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.


Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

The provision getting the most attention relates to the use of locker rooms and restrooms and specifically precludes a solution where schools provide single-user facilities to a student to assuage privacy and safety concerns:

A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

On a subject of this importance, process matters. A massive shift in the meaning of federal law is not something to be done by a bureaucratic agency at the stroke of a pen.

[1] U.S. Department of Education Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence” April 29, 2014, pp. 5-6, at

[2] U.S. Department of Education Office for Civil Rights, Letter, January 7, 2015, at (Exhibit B).

[3] OCR Case No. 09-12-1020 (July 24, 2013), at

[4] Resolution Agreement Between the Arcadia Unified School District, the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division, OCR Case Number 09-12-1020, July 24, 2013 at

[5] OCR Case No. 09-12-1095 (October 14, 2014), at

[6] Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095 (October 14, 2014), at

[7] Grimm v. Gloucester County School Board, Statement of Interest of the United States, Civil No. 4:15cv54 (June 29, 2015).

[8] ACLU, “G.G. v. Gloucester County School Board,” November 23, 2015 at

[9] G.G. v. Gloucester County School Board, Civil No. 4:15cv54 (Eastern Dist. Va. 2015) at

[10] G.G. v. Gloucester County School Board, Brief of Plaintiff-Appellant, No. 15-2056 (4th Cir. October 21, 2015) at

[11] Duaa Eldeib & Robert McCoppin, “Feds Reject School District’s Plan for Transgender Student, Locker Room” Chicago Tribune, October 21, 2015, at

[12] Doug Moore, “Hillsboro High Students Walk Out Over Transgender Dispute,” St. Louis Post-Dispatch, September 1, 2015, at

[13] Lauretta Brown, “Feds Forcing Schools to Adopt ‘Nondiscrimination’ for Transgender Teachers and Students,” CNS News, May 7, 2015, at

[14] Videckis v. Pepperdine University, Case No. CV-15-00298, (C.D. Cal. 2015) at

[15] Liam Stack, “Government to Reveal Colleges With Title IX Waivers,” New York Times, January 21, 2016, at

[16] U.S. Department of Education & U.S. Department of Justice, “Dear Colleague Letter on Transgender Students,” May 13, 2016, at


Law professor on how Utah balanced religious freedom, LGBT rights

This week we had the opportunity to converse with Robin Fretwell Wilson, professor at the University of Illinois College of Law. Professor Wilson talked about what Utah got right as it worked to balance religious freedom with LGBT rights in the 2015 general legislative session.

Well, I think the most remarkable thing is you have the reddest state in America extending more protections to the LGBT community than even a very blue state like New York did. In other words, Utah went the distance and protected transgender people who are not expressly protected in New York and in exchange for that, it got ahead of the curve on same-sex marriage and doesn’t find itself flat-footed like the rest of the country right now where you have marriage clerks resigning and you have state offices closing down the marriage function, which I think is wrong, and you don’t have questions about whether a religious group’s tax exemption is going to be at risk.

All that gets buttoned down in the “Utah Compromise” and what I call marriage conscience protections, as well as some innovative pieces, like if you say something in a non-professional setting – think about saying something at a religious meeting on Sunday, like “marriage is between a man and a woman,” in your view, and then walk into your real estate business on Monday – nobody can yank your real estate license. That’s new; that hasn’t been there in other states.

There has to be a forum for every Utahn to be married, in every county, but the county can dispatch that duty in a way that means no religious objectors who have been working at those offices can be fired, except for the [County] Clerk who has been elected. The [County] Clerk can basically outsource this function to any authorized celebrant in the community whether that’s a religious figure or a judge; whoever volunteers. And everybody is treated the same way; it’s seamless. So, a same-sex couple comes in and they get the same treatment as a straight couple.

Continuing, Robin Wilson noted:

Utah actually has workplace speech protections both inside and outside the workplace that are really important in the sense that they protect political and religious speech about marriage, family and sexuality. But they’re two-way-street provisions so if a kid goes to an Equality Utah parade on the weekend he can’t come into the burger joint [where he works] on Monday and be fired for that – and neither can somebody who gave $1000 to Prop 8 be fired for doing that outside the workplace. It’s nobody’s business.

Inside the workplace, there’s a bigger role for the employer to say, ‘Hey, I don’t want any kind of speech about marriage, family or sexuality’ – but if they allow it, if they don’t want to bar that because it conflicts with their essential business purposes, then they have to allow it on the same basis whether it is pro-gay marriage [or] anti-gay marriage, but to the extent that the employer wants to say, ‘Nobody’s going to be talking about that at all,’ then they can tell [his or her employees] that [they’re] not going to be able to do that.

Professor Robin Wilson then concluded with these observations:

Everybody is going to have the urgency of deciding how you’re going to deal with marriage in a world in which legislatures did not get in front of this problem. I think those marriage protections – things like saying if you did religious counseling about marriage before [the U.S. Supreme Court validated] same-sex marriage you can do the same thing after and if that meant you dealt with traditional heterosexual married people only, then you can do that after. Those kinds of things are going to need to be put in state-wide law if there are municipal laws that say otherwise or if an organization contracts with the state or is tax-exempt or for a variety of other reasons. I think the way forward there is not to try to do legislative cram-downs. In other words, just because you have the votes doesn’t make it right. It’s going to go better if everybody is trying to think about a civil society where we live together in peace.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

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