Abortion bans and LGBTQ-targeted laws are catching some school campuses in the crosshairs

Public schools and colleges that receive federal funding – which is nearly all of them – now find themselves caught between new state laws banning abortion and stripping the rights of students who are transgender and nonbinary, and a federal law that bans sex-based discrimination in schools.

The Education Department is warning schools that some of the state laws local officials must uphold conflict with their legal obligations to Title IX, the federal law that prohibits sex-based discrimination. Student protesters and other groups have come out to protest state-level actions in Virginia, Idaho and Florida that may violate the federal law.

"They have to stay on (the Education Department's Office for Civil Rights') good side because they need the federal funds," said KC Johnson, a history professor at Brooklyn College. "At the same time, it's inevitable we're going to see a state legislature influencing universities. ... What happens when they're stuck between the state legislature and the OCR on the other side?"

In states where abortion is now outlawed: Students ramp up activism

Johnson said schools and universities could find themselves in violation of students' First Amendment rights including freedom of speech and religion if they implement anti-transgender and nonbinary policies, but it's unclear whether they'll be considered Title IX violations by courts based on legal precedent.

The state-federal clash is only beginning: The Biden administration is reviewing tens of thousands of comments to its proposed changes to the current Title IX regulation enacted by the Trump administration. The new rules would mean additional discrimination protections for students who are transgender, nonbinary or who may be pregnant.

More: How schools will treat sexual misconduct is changing. Who's saying what about Title IX?

Virginia’s anti-LGBTQ laws would affect transgender and nonbinary students

In Virginia, Republican Gov. Glenn Youngkin proposed model policies last month that would reverse current state protections for transgender students. The new rules would require schools to limit students’ participation on sports teams and access to restrooms to those that align with their gender assigned at birth. It would require students use the genders, pronouns and names on their school records.

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"Virginia’s proposed policy does not, as it legally could not, direct Virginia schools to discriminate against transgender students where prohibited by federal law," a spokesperson for the federal Education Department previously told USA TODAY. "Virginia’s new proposed policy is designed to confuse, and its most likely outcome will be to undermine (schools') focus on schooling."

Federal courts have previously ruled that the U.S. Constitution and Title IX already "protect transgender students from school bathroom policies that prohibit them from affirming their gender identity," said a spokesperson for the federal Education Department. The U.S. Supreme Court last year declined to hear the case of a Virginia-based transgender student who wasn't allowed to use the boys' restroom and instead forced to use another restroom, allowing a lower courts' ruling in favor of the student to stand.

Despite advocates' calls for more protections under Title IX for LGBTQ students, the Biden administration hasn't yet issued any proposed rules about which gender-specific sports teams transgender and nonbinary students can play on. The department has said it plans to issue separate regulations on that issue, which are expected to contradict Virginia's policy.

Virginia’s state superintendent, appointed by Youngkin, could amend the final draft based on comments submitted during a 30-day period for feedback, which began in late September, Charles Pyle, a spokesperson for the state education agency, previously told USA TODAY.

Idaho university warns employees about state abortion ban, guidance to students

At the University of Idaho, general counsel sent a memo warning university employees that they shouldn’t provide birth control to students given that state law bans them from taking action “promoting” abortion, nor should they provide students with any emergency contraception except in cases where rape is involved. The memo contained a warning that anyone who does so will be violating state law and could face legal and state of employment consequences.

Starting in August, Idaho law bans abortions except in rare cases. The change came after the U.S. Supreme Court's Dobbs decision overturned Roe v. Wade earlier this year.

More: Idaho college says staff could face felony for 'promoting' abortion, providing birth control

“The university can provide condoms for the purpose of helping prevent the spread of STDs, but not for the purposes of birth control,” the memo reads. The memo does say students can access counseling or “the means for birth control” through licensed physicians and health care workers at student health center locations run by Moscow Family Medicine.

In the memo, the university's general counsel also wrote that the institution “is committed to operating within the confines of laws of the state of Idaho which restrict expenditures of funds and activities of university employees in the areas of abortion and contraception.”

A statement from the university reads: “This is a challenging law for many and has real ramifications for individuals in that it calls for individual criminal prosecution. This guidance was sent to help our employees understand the legal significance and possible actions of this new law passed by the Idaho Legislature."

Going forward, schools may find themselves on new ground when it comes to the treatment of pregnant students, Johnson said.

"Most universities make accommodations for pregnant students, but in the recent guidance from Idaho, and with abortion politics now so scrambled in terms of the Dobbs decision, whether or not the regulations simply mean accommodations to pregnant students, or whether this is going to sort of pull universities in debates in abortion politics is the question," Johnson said. "I suspect it will happen in red states."

The University of Idaho’s guidance has drawn criticism from abortions rights groups, including Planned Parenthood, and the White House. After the memo became public, the federal Education Department's Office for Civil Rights issued a resource sheet to all schools and universities reminding them that federal precedent prohibits discrimination based on pregnancy.

“The regulations make clear that Title IX protects students and employees from discrimination based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom,” the resource sheet reads.

Florida athletics association asks K-12 student athletes about menstrual periods

Palm Beach County, Florida, schools, and other schools in the state are also under fire for a move by the Florida High School Athletic Association, which is asking student athletes to answer questions about their menstrual cycles as part of a health exam that will be stored on the third-party digital tracking program, a software company called Aktivate. The question to athletes from the association, which creates the medical forms for the district and other school systems across the state, isn't new, but the digital tracking of answers is causing concern.

More: Florida asks student athletes about their periods. Why some find it 'shocking' post-Roe

Some, including pediatricians, are concerned it could lead to violations of students' privacy, especially because the records are subject to subpoena, The Palm Beach Post reported. Florida bans abortions after 15 weeks, and some are worried the documentation could be used in court to help prosecute elementary, middle and high school students who have abortions.

The head of the Florida High School Athletic Association told The Palm Beach Post it must comply with a law requiring student athletes to conduct a medical evaluation before participating in school sports. The state, however, does not have a policy requiring the association, or the schools it oversees, to track student athletes' menstrual cycles, or use the third-party software.

Claudia Shea, a spokesperson for the Palm Beach County School District, told USA TODAY the district does not create its own athletic form, which are created by the Florida High School Athletic Association. Shea said even though the questions are optional, and Palm Beach County does not require student athletes to provide the information, the district has recently "inquired about having this question removed."

FHSAA to date has not altered the form, Shea said.

"The district will continue to explore other options, such as lobbying for revisions to this form and/or limiting the information provided to schools to solely the physician's approval or disapproval of the student athlete's medical clearance," Shea said.

The Education Department weighed in on the move last week, saying those schools have an obligation to protect students from sex-based discrimination, which includes “discrimination based on pregnancy, termination of pregnancy, or any related conditions."

“This administration is committed to protecting women’s rights and affirm that access to health care, while also respecting their privacy," Catherine Lhamon, head of the Education Department's civil rights arm, told USA TODAY. "Any student who is concerned about their rights can file a complaint with the Department’s Office for Civil Rights."

Shea said the district has not heard from the OCR.

Contributing: Cady Stanton, Alia Wong and Marina Pitofsky

Contact Kayla Jimenez at kjimenez@usatoday.com. Follow her on Twitter at @kaylajjimenez.

This article originally appeared on USA TODAY: Fight over abortion, LGBTQ protections spills onto school campuses