In this article, we will explain why legislators should ask the Washington Attorney General Nick Brown for a legal opinion about whether Washington laws and Policies such as Policy 3211 have priority over Title IX.
For the past 8 years, our Superintendent of Public Instruction and our current Governor (and former Attorney General) have repeatedly stated that the word “sex” in Title IX includes “gender identity.” They have repeatedly used this crazy claim to require schools in Washington state to require allowing biological males in the girls bathrooms and in girls sports.
Ferguson made this crazy claim that Title IX applies to Gender Identity several times between 2017 and 2024 in federal legal filings. For example, on March 17, 2017, Ferguson submitted a 66 page Amicus Brief to the US Supreme Court arguing that the word “sex” in Title IX included “gender identity.” Here is the link to his Brief:
https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/16-273%20bsac%20States%20%282%29.pdf
Here are quotes from his brief: “Question Presented: Whether the Gloucester County School Board’s policy… discriminates against transgender students “on the basis of sex,” in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a)?… The amici States share a strong interest in seeing that Title IX is properly applied to protect transgender people from discrimination in federally funded educational institutions.”
The Supreme Court disagreed with Ferguson and remanded the case back to the lower court where it was dismissed due to Trump taking office and withdrawing the Obama policy which had claimed that the word “sex” included “gender identity.”
In May 2020, Trump published a Title IX Final Rule clarifying that the word “sex” means “Biological Sex.” In response, on June 4, 2020, Ferguson filed a 119 page brief in DC Federal Court opposing the Trump Title IX final rule:
https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/TitleIX_Complaint.pdf
On page 61, Ferguson admitted that “
“Because each State receives federal funding from the Department for primary and secondary education, each State and its public primary and secondary education systems are subject to the (Trump Title IX Final) Rule.”
On page 72, Ferguson claimed that:
“The (Trump Title IX Final) Rule will directly harm the States’ sovereign interests by interfering with their primary authority to enact and enforce their own laws governing education institutions within their borders, as well as interfere with the important parallel role States have traditionally played in eliminating discrimination within their borders.”
On page 99, Ferguson admits that Washington State laws directly harmed by the Trump Final Rule include WSSDA Model Policies and Procedures (Policy 3211 and 3211P – both of which require allowing biological males in girls bathrooms and girls sports):
“Washington law prohibits discrimination on the basis of sex in K-12 schools. Chapter 28A.640 Wash. Rev. Code. Regulations implementing this statute define sexual harassment for antidiscrimination purposes and establish required criteria for each school district’s sexual harassment policy. Wash. Admin. Code §§ 392-190-056, 057. School districts are required to adopt sexual harassment policies and procedures that meet both state and federal antidiscrimination law requirements. The Washington State School Directors’ Association has published model policies and procedures concerning issues such as harassment, gender inclusivity, and student discipline. Washington’s Gender Equality in Higher Education Act, Chapter 28B.110 Wash. Rev. Code, prohibits discrimination on the basis of gender at Washington’s higher education institutions. . Wash. Rev. Code § 28B.110.030(8).”
Finally, on page 101, Ferguson admits that:
“Where a Plaintiff State’s law provide greater protections than the Rule, schools subject to these laws will need to create parallel code of conduct provisions and enforcement mechanisms—one addressing “Title IX sexual harassment” and one addressing “non-Title IX sexual harassment.”
On August 12, 2020, the DC federal court rejected all of Ferguson’s arguments and denied Ferguson’s motion against the Trump Title IX Final Rule. But the admissions in his Brief make it clear that Washington state laws were (and still are) contrary to the 2020 Trump Final Rule.
Despite having his arguments twice rejected by federal courts, on November 26, 2021, Ferguson filed a 55 page brief in the case of Adams v. School Board of St. Johns Co. (Eleventh Circuit): https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/School%20Board%20of%20St.%20Johns%20Co.pdf
Here are quotes from Ferguson (note that Adams was a biological girl who claimed to be a transgender boy and therefore wanted to use the boys bathrooms). Ferguson argued that prohibiting her from using the boys bathroom was a violation of Title IX:
“barring Adams from using the boys’ bathroom... violates Title IX by denying transgender boys and girls access to the same common restrooms that other boys and girls may use… the issue is whether discrimination based on a person’s gender identity is sex discrimination prohibited by Title IX… The Board’s bathroom policy discriminates based on sex in violation of Title IX.”
The 11 judge federal panel disagreed with Ferguson. On December 31, 2022, the U.S. Court of Appeals for the Eleventh Circuit issued a 7-4 150 page decision affirming that under Title IX, public schools have the duty to segregate bathrooms and locker rooms based on biological sex. https://media.ca11.uscourts.gov/opinions/pub/files/201813592.2.pdf
Despite having his crazy Title IX Gender Identity theory rejected three times by federal courts, on August 13, 2024, Ferguson filed a 52 page brief again arguing that the word “sex” in Title IX meant “gender identity” instead of “biological sex.” This Ferguson brief was filed in the case of Tennessee v Cardona. Here is the link to this Ferguson brief: https://oag.ca.gov/system/files/media/title-ix-amicus-brief.pdf
Here is a quote from this Ferguson brief: “In clarifying that sex discrimination includes discrimination based on sexual orientation or gender identity, the U.S. Department of Education’s (“ED”) new final rule... is consistent with the plain text of Title IX.”
On January 9, 2025, the Tennessee v Cardona federal court disagreed with Ferguson and instead ruled that the term “sex” in Title IX means biological sex and not gender identity. Here is a quote from the January 9, 2025 Tennessee v Cardona ruling:
“Expanding the meaning of “on the basis of sex” to include “gender identity” turns Title IX on its head… the entire point of Title IX is to prevent discrimination based on sex—throwing gender identity into the mix eviscerates the statute and renders it largely meaningless.”
The federal judge issued an order vacating the Biden Title IX Final Rule and requiring all 50 states to immediately comply with the original meaning of Title IX. Here is a link to this 15 page ruling: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2025/2025-1-title-ix.pdf
However, instead of complying with the January 9, 2025 federal court Title IX order, which prohibits allowing biological males in girls bathrooms and girls sports, Reykdal has continued to enforce Washington Policy 3211 which requires schools to allow biological males in girls bathrooms and girls sports. The result is that school districts are forced to choose between complying with state policy – and violate federal law – or comply with federal law – and violate state law.
Reykdal has justified ignoring the federal court order (and Presidential Orders based on the federal court order) by falsely claiming that Washington state civil rights law has priority over federal civil rights laws like Title IX. For example, in a March 4, 2025 letter to the Tumwater school board and in a March 6 letter to the Moses Lake School Board (after both school boards had voted to comply with Title IX), Reykdal falsely claimed that: “States are permitted to provide greater protections for students than what is required by federal minimum standards, and Washington’s laws fit squarely within the scope of what is allowed by federal law.”
The following article explains why Washington state law does not have priority over Title IX: https://washingtonparentsnetwork.com/title-ix-facts/why-washington-policy-3211-does-not-override-title-ix
Reykdal’s failure to comply with Title IX places every member of the Washington legislature in jeopardy of violating federal law and their Oath of Office (as well as losing billions of dollars in federal education funds) if Reykdal is wrong.
The good news is that the Washington State Attorney General is required to provide a legal opinion to any member of the legislature who asks about a question of law. Ironically, the Washington Attorney General has been silent about three important legal questions:
#1: Whether Washington Policy 3211 – which requires allowing biological males in girls bathrooms and girls sports – is in violation of Title IX which prohibits allowing biological males in girls bathrooms and girls sports.
#2 Whether State Civil Rights Laws and resulting policies, such as Policy 3211 and 3211P have priority over Title IX.
#3 Whether the State legislature and/or the Washington State Office of Public Instruction have a duty to comply with Title IX as a result of receiving federal funds.
If one or more members of the Washington House of Representatives or Washington Senate ask the Washington Attorney General to provide them with a legal opinion on these three questions, the Attorney General would be forced to choose between exposing Reykdal and Ferguson or joining them in their fraud against the parents and children here in Washington state. Either way, the public would begin to learn the truth about the crimes being committed against all of us.