Can an Arkansas school district add 'sexual orientation' and 'gender identity' as protected classes in its anti-discrimination policy?
Plain-English summary
State Senator Missy Thomas Irvin asked the AG whether Arkansas school districts can adopt the Arkansas School Board Association's model nondiscrimination policy. The model policy lists "sexual orientation" and "gender identity" alongside race, religion, sex, age, and disability as protected classifications. The AG concluded that adopting that policy violates Act 137 of 2015 and may violate Arkansas's school-sports laws (Acts 461 and 953 of 2021).
Act 137 of 2015 (A.C.A. § 14-1-401 et seq.). This statute prohibits "a county, municipality, or other political subdivision of the state" from adopting any ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law. The AG worked through two questions:
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Are sexual orientation and gender identity in state law as protected classifications? No. The Arkansas anti-bullying statute (A.C.A. § 6-18-514(b)) lists those attributes as targets of bullying, but the Arkansas Supreme Court in Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, 510 S.W.3d 258 (2017), held the anti-bullying statute "does not create protected classifications or prohibit discrimination."
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Are school districts "political subdivisions" under Act 137? Yes. Although Act 137 does not define the term, many other Arkansas statutes explicitly include school districts (A.C.A. §§ 10-4-402(a)(5), 17-25-403(a), 14-164-703(a), 2-18-112(a)(2)). And the Arkansas Supreme Court has called school districts "political subdivisions" in cases like Helena-W. Helena Sch. Dist. v. Monday, 361 Ark. 82, 204 S.W.3d 514 (2005), and Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000).
The AG cited Protect Fayetteville (the Arkansas Supreme Court holding striking down a Fayetteville city ordinance for the same reason) as direct authority. So the model policy violates Act 137.
Acts 461 and 953 of 2021 (school sports). Act 461 (codified at A.C.A. § 6-1-107) and Act 953 (codified at A.C.A. § 16-130-101 et seq.) require school sports teams to be designated as male, female, or co-ed and prohibit males from participating on female-designated teams. The acts apply to all educational levels: elementary, secondary, charter, and postsecondary.
The model policy's compliance with the sports laws depends on application. The AG identified two specific applications that would violate the sports laws:
- The school district fails to designate sports teams as male, female, or co-ed.
- The school district allows male students on female teams.
If the policy is applied otherwise, it would not necessarily violate the sports laws. But the policy itself violates Act 137 regardless.
This is a notable opinion in a sequence of state-level AG opinions across multiple states addressing whether protected-classes legislation interacts with subsequent school-sports laws and pre-2015 anti-LGBTQ-discrimination policies.
What this means for you
School board members
If you are considering adopting (or have already adopted) the ASBA model nondiscrimination policy that lists sexual orientation or gender identity, the AG's reading is that you violate Act 137 of 2015. The path forward is one of:
- Adopt a policy that mirrors only the protected classes in state law (race, color, religion, national origin, sex, age, disability) and omit sexual orientation and gender identity.
- Continue with the model policy and accept the risk that a citizen suit (or a state-level enforcement action) could declare the policy invalid.
- Follow whatever the legislature does next; the political environment around this issue changes year to year and statutes can be amended.
The opinion does not affect anti-bullying language, which is statutorily authorized and operates independently of Act 137.
School district administrators
When updating handbook and policy materials, run nondiscrimination clauses against the state-law list. If your policy adds classifications beyond state law, document why (federal Title IX or Title VI obligations, perhaps; consult counsel). State law controls for state-law claims; federal law operates separately.
For sports compliance, ensure that:
- Every interscholastic athletic team is designated as male, female, or co-ed.
- The school does not allow male students to participate on female teams.
Public school attorneys
This opinion is not the only word on the question; it interprets state statutes and a state Supreme Court precedent. Federal law (Title IX, the U.S. Constitution, and federal statutes) operates separately and may require things state law does not require, or may forbid things state law forbids. Cross-check against federal precedent before advising a school district to remove protections that may be federally required.
The opinion is also from October 2023; subsequent statutory amendments or court decisions (state or federal) may change the analysis. Check current statutes before relying.
Parents of school-age children
If your school district has the model nondiscrimination policy that lists sexual orientation and gender identity, this AG opinion takes the position that the policy is invalid under Act 137. That does not automatically remove federal or constitutional protections. If your child experiences treatment you believe is discriminatory, federal claims under Title IX, Section 1983, or the Equal Protection Clause are independent of state policy.
For sports participation specifically, A.C.A. § 6-1-107 and § 16-130-104(a) require teams to be designated by biological sex, and A.C.A. § 6-1-107(c)(2)(B) and § 16-130-104(b) prohibit male students from female teams. "Sex" is defined as immutable biological sex at birth (A.C.A. § 16-130-103(2)).
LGBTQ advocacy groups and civil rights attorneys
Use this opinion as documentation of the state AG's position. Federal litigation around state preemption of LGBTQ protections is active and changes quickly. State statutes can also change with each legislative session. The AG opinion is persuasive authority, not binding precedent; a court is the final word.
Athletic directors
Confirm your team designations are explicit and posted. Parental questions about transgender students' eligibility are increasingly common; have a plan that complies with A.C.A. §§ 6-1-107 and 16-130-104. Maintain documentation in case of disputes.
Common questions
Does this opinion mean LGBTQ students have no anti-discrimination protections in Arkansas schools?
No. State-level protections under a school-district policy are limited by Act 137. But federal protections (Title IX as interpreted by federal courts, the federal Equal Protection Clause, Section 1983 claims) operate independently. The opinion is about what Arkansas school districts can adopt, not about what federal law requires.
The Arkansas anti-bullying statute lists sexual orientation. Doesn't that mean these are protected classes?
The Arkansas Supreme Court in Protect Fayetteville explicitly said no. The anti-bullying statute is about preventing bullying behavior; it does not create protected classes for general anti-discrimination purposes. So referencing the anti-bullying statute does not allow a school district to expand protected classes under Act 137.
Can the school district enforce its existing nondiscrimination policy until a court strikes it down?
That is a litigation question. The AG opinion is persuasive authority. A district may face enforcement risk if it adopts or maintains the policy after this opinion is issued, especially if a citizen sues. Districts should consult counsel.
What about discrimination on the basis of pregnancy or marital status?
Those are not addressed in this opinion. Some are covered by federal law (pregnancy under Title VII for employees, Title IX for students); some are addressed in other Arkansas statutes. Run each potential addition against state law before adopting.
Has the legislature ever attempted to add sexual orientation or gender identity to state law's protected classes?
Bills have been introduced in various sessions. None has passed. Until a state statute creates the classification, Act 137 forbids subdivisions from doing so on their own.
Background and statutory framework
Act 137 of 2015 (A.C.A. § 14-1-401 et seq.) is sometimes called the "anti-anti-discrimination" statute by critics. It was passed in response to municipal nondiscrimination ordinances (like Fayetteville's) that included sexual orientation and gender identity. The Arkansas Supreme Court upheld Act 137's preemption of those ordinances in Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, 510 S.W.3d 258. (Ark. + S.W.3d signals state Supreme Court.) That case also confirmed that the anti-bullying statute does not create protected classifications.
The "political subdivision" question is decided by reference to multiple Arkansas statutes that include school districts in the term, plus state Supreme Court precedent (Helena-W. Helena Sch. Dist. and Dermott Special Sch. Dist., both Arkansas Supreme Court cases). The AG concluded a court would treat school districts as political subdivisions for Act 137 purposes.
For sports laws, Acts 461 and 953 of 2021 codify Arkansas's "Save Women's Sports" framework. Section 16-130-103(2) defines "sex" as "a person's immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth." Section 6-1-107(c) and § 16-130-104(a) require sex-segregated teams; § 6-1-107(c)(2)(B) and § 16-130-104(b) prohibit male participation on female teams.
The opinion explicitly notes the model policy may comply with the sports laws if it is not applied to override team designations or to allow male participation on female teams. That qualifying language is important: a generic nondiscrimination clause does not automatically override the sports-specific statutes. But applying the clause to override team designations or admit male students to female teams would.
Citations
- A.C.A. § 14-1-401 et seq. (Act 137 of 2015)
- A.C.A. § 14-1-403(a) (political subdivision protected-class prohibition)
- A.C.A. § 6-1-107 (Act 461 of 2021, school sports designation)
- A.C.A. § 6-1-107(b) (school definitions)
- A.C.A. § 6-1-107(c) (sports team designations)
- A.C.A. § 6-1-107(c)(2)(B) (no male on female teams)
- A.C.A. § 16-130-101 et seq. (Act 953 of 2021)
- A.C.A. § 16-130-103(1) (covered entities)
- A.C.A. § 16-130-103(2) (definition of sex)
- A.C.A. § 16-130-104(a) (team designation requirement)
- A.C.A. § 16-130-104(b) (no male on female teams)
- A.C.A. § 6-18-514(b) (anti-bullying statute, lists protected attributes)
- A.C.A. § 10-4-402(a)(5) (school as political subdivision)
- A.C.A. § 17-25-403(a) (school district as political subdivision)
- A.C.A. § 14-164-703(a) (school districts as local political subdivisions)
- A.C.A. § 2-18-112(a)(2) (broad political subdivision definition)
- Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, 9–10, 510 S.W.3d 258, 263 (2017)
- Helena-W. Helena Sch. Dist. v. Monday, 361 Ark. 82, 85–86, 204 S.W.3d 514, 516 (2005)
- Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 96, 32 S.W.3d 477, 481 (2000)
Source
Original opinion text
Opinion No. 2023-059
October 2, 2023
The Honorable Missy Thomas Irvin
State Senator
Post Office Box 106
Mountain View, Arkansas 72560
Dear Senator Irvin:
I am writing in response to your request for an opinion on whether a school board's adoption of a
model policy of the Arkansas School Board Association would violate Arkansas law.
The model policy states:
No student in the [District] shall, on the grounds of race, color, religion, national origin,
sex, sexual orientation, gender identity, age, or disability be excluded from participation
in, or denied the benefits of, or subjected to discrimination under any educational program
or activity sponsored by the [District].
You have asked whether, if a school district were to adopt this policy, the inclusion of "sexual
orientation" and "gender identity" as protected classifications violates Acts 461 and 953 of 2021
or Act 137 of 2015.
RESPONSE
Yes, such a policy would violate Act 137, and it would not comply with Act 461 or Act 953 if the
policy were applied in such a way that the school district (1) failed to designate sports teams as
male, female, or co-ed; or (2) allowed male students to participate in female-designated sports
teams.
DISCUSSION
1. Act 137 of 2015. The inclusion of sexual orientation and gender identity as protected
classifications would violate Act 137 of 2015, which is codified at A.C.A. § 14-1-401 et seq.
Act 137 of 2015 prohibits political subdivisions from creating protected classes that are not already
contained in state law: "A county, municipality, or other political subdivision of the state shall not
adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or
prohibits discrimination on a basis not contained in state law."
Since Arkansas law does not characterize sexual orientation or gender identity as protected
classifications, the only remaining question is whether school districts are considered "political
subdivisions" under the act. The act applies only to "a county, municipality, or other political
subdivision of the state." While Act 137 does not define "political subdivision," many other
provisions of the Code explicitly include school districts within the definition of "political
subdivision." And the Arkansas Supreme Court has often described school districts as "political
subdivisions." Given the widespread usage of the term "political subdivision," I believe a court
would considered school districts to be included under Act 137.
Therefore, Act 137 prohibits school districts from adopting policies that prohibit discrimination
on the basis of sexual orientation or gender identity.
2. Acts 461 & 953 of 2021. Act 461 of 2021 (codified at A.C.A. § 6-1-107), and Act 953 of 2021
(codified at A.C.A. § 16-130-101 et seq.), regulate participation in school sports. The acts apply
to public schools at all educational levels. The acts together provide that participation in school
sports shall be segregated based on biological sex. Sports teams must be designated as male,
female, or co-ed. Both acts explicitly prohibit males from sports teams that are designated for
females.
Whether a school district's adoption of this model policy would violate Acts 461 and 953 depends
on how the school applied the policy. The policy would violate the two acts if the school interpreted
it to either (1) prohibit designating the school's sports teams as male, female, or co-ed; or (2) allow
males to participate on female sports teams.
Sincerely,
TIM GRIFFIN
Attorney General