Three words in the Constitution are crushing Miguel Cardona’s efforts to protect transgender students in the classroom: freedom of speech.

The Education secretary believes students have the right to be called “he,” “she,” “they” and other pronouns in school that match their gender identity. The courts see it differently.

Shawnee State University in Ohio paid out $400,000 in April to Nick Meriwether, a professor who sued the institution for violating his rights and levying an unfair punishment when he refused to refer to a transgender student by her pronouns. Similar cases have occurred at public schools across the K-12 level, including in Virginia and Kansas, with educators suing on the grounds that using pronouns they don’t agree with violates their First Amendment rights to free speech and the exercise of their religion.

Cardona’s new proposed rule for Title IX, the federal education law that prohibits sex-based discrimination, is expected to go public in June and include protections based on sexual orientation and gender identity for the first time. Enforcing the policy may prove difficult for Title IX administrators. And the pending rule will tee up more legal battles over competing philosophies on gender ideology, forcing institutions to tiptoe between potentially costly settlements in courts and protecting transgender students on campus.

“It’s very hard to say to a student: ‘I know that you are being othered. I know that you are being treated as less than. I know that you are not being honored in your identity,’” said Brett Sokolow, president of the Association of Title IX Administrators, “’and we as an institution can’t do anything about it.’”

Political tension has escalated in the past two years over transgender students’ access to bathrooms and locker rooms that match their gender identity and which sports teams they play on. It’s unclear how the courts will ultimately resolve those cases, but pronouns appear to face a more difficult legal landscape.

Misgendering and refusing to use the correct pronouns are the most common Title IX complaints filed by transgender students, administrators say, and using the right gender pronouns is vital to inclusivity, according to The Trevor Project, a nonprofit that focuses on LGBTQ mental health. While a student’s complaint is covered by the Title IX office, getting a faculty member to comply may be a challenge after Shawnee State’s court case and recent settlement.

Judge Amul Thapar, a Donald Trump appointee to the 6th Circuit Court of Appeals, in what is considered the first major ruling on the use of pronouns in the classroom, wrote Shawnee State University “punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.”

Lawsuits over pronouns aren’t a regular part of the Title IX process. Educators say they aren’t looking to intentionally harm their students by refusing to use their pronouns and, most of the time, Title IX investigators say they are able to reach a solution that’s agreeable to both sides.

“But 20 percent of [educators] or so are dug in and they’re doing this as a political statement,” Sokolow said. “They want the publicity and they want the school to try to punish them because then they can make this a cause and they can pose this as the conflict of woke ideology against the maintenance of traditional values.”

In the courts

Alliance Defending Freedom, a conservative Christian legal group, is one of the organizations at the center of pronoun challenges in court — and it says they’ve kept their arguments simple.

“The Supreme Court has been very clear throughout its opinions on speech,” said Ryan Bangert, ADF’s senior counsel and vice president of legal strategy. “Freedom of speech always includes the right not to speak messages that cut against the speaker’s core belief. And that’s precisely what these policies do.”

The same strategy is also being applied to a case in Kansas at the K-12 level, Bangert said. Kansas middle school teacher Pamela Ricard sued USD 475 Geary County School Board in March over a policy that required her to refer to students by their preferred first name and pronouns that match their gender identity. But the school’s policy prohibited her from using a student’s pronouns and names when speaking to their parents.

While the district court this month found that Ricard was “unlikely to experience irreparable harm” from the school’s enforcement of its policy, it granted a preliminary injunction saying Ricard’s “free exercise claim” has merit.

Ricard “has testified that she is a Christian and believes the Bible prohibits dishonesty and lying,” the court wrote. “She believes it is a form of dishonesty to converse with parents of a child using one name and set of pronouns when the child is using and being referred to at school by a different name and pronouns.”

The opinions largely apply to the individual plaintiffs, Bangert said, though ADF believes that if the Title IX rule is finalized with protections for transgender students and includes pronouns, the “principles apply generally and others who find themselves in the same situation can surely take advantage of those opinions.”

Other cases are also emerging, including one in Virginia where a high school teacher said he was fired for refusing to use a student’s pronoun. Tension is also escalating in Wisconsin after a school district filed a Title IX complaint against three eighth-grade boys over using incorrect pronouns when addressing another student.

Bangert, however, said that the educators ADF has represented in court have “sought to find the middle ground,” which school districts have rejected. This includes using last names or sometimes a student’s preferred name, but not their pronouns or titles.

Despite the First Amendment challenges, advocates for transgender and nonbinary students say they’re confident the Biden administration will continue to push to protect these students.

“Previously, we didn’t have a Department of Education that was willing to step up and really push back against some of these challenges that existed,” said Alexis Rangel, policy counsel at the National Center for Transgender Equality, a nonprofit advocacy group. “But our voices are being listened to in ways that they never have been before, including by the most vocally supportive administration for trans people in the history of our country.”

Enforcement challenges

Education Department officials last June announced transgender students are covered under Title IX, a return to Obama-era discrimination protections for the group after they were revoked under the Trump administration.

The Biden administration’s interpretation of the law, which bans discriminating against someone based on sexual orientation and gender identity, is based on the landmark 2020 Supreme Court ruling in Bostock v. Clayton County. It also makes good on an executive order issued by President Joe Biden that said the court case about transgender rights in the workplace applies to Title IX.

“It’s essential for schools to be welcoming environments,” Cardona said in March, a statement the Education Department pointed to when asked about the pronoun lawsuits. “We know transgender students are among the most vulnerable not because of who they are, but because of the hostility directed at them.”

Despite the Biden administration’s best efforts to codify a rule to protect transgender students, legal challenges may hinder a school’s ability to enforce the pronoun part.

In higher education, colleges may be less likely to take on pronoun complaints against professors through a formal Title IX process due to fear of costly settlements — though, they will be required to investigate an issue. Academic freedom is also an issue, said Alyssa-Rae McGinn, vice president of investigations at Dan Schorr, LLC, a firm that specializes in Title IX cases.

“In any situation where something like academic freedom, freedom of speech or freedom of expression comes up in response to a claim of harassment, the decisionmaker essentially has to decide, ‘Was it a reasonable exercise of those rights?’” McGinn said. “’Did it infringe on this other person’s right to not be discriminated against on the basis of their gender?’”

The number of Title IX complaints from LGBTQ students is far lower in K-12 than higher education, and K-12 Title IX complaints usually stem from reports of sexual misconduct, McGinn said. “A lot of schools don’t really consider the pronouns issue and preferred names … as rising to the level of a Title IX issue, unless it meets that severe pervasive and objectively offensive standard.”

Educators refusing to use pronouns, McGinn said, is “at the most basic level, the kind of microaggressive behavior that chips away at a person, disaffirms a person and really continually reinforces that you are not your gender.”

But using correct pronouns could also be the difference between life and death for transgender and nonbinary youth, who are more vulnerable than their peers to suicidal ideations, according to The Trevor Project’s annual report on LGBTQ youth mental health. More than half of transgender youth contemplated suicide in the past year — and suicide risk is higher for LGBTQ kids ages 13 to 17.

Many schools are trying to balance these mental health risks with student privacy laws, their federal obligation to investigate a claim and cases where a child might not be out to their families.

“The school has to decide: ‘Are we in a jurisdiction where what we know, parents have a right to know?’” said Sokolow, the president of ATIXA. “‘Are we supposed to shield these children from their intolerant parents and help them in this transition process where they can at least live their true selves in school?”

“It’s a nightmare,” he said. “Schools are caught between the kids and the parents.”

Senate Republicans are sprinting away from Herschel Walker’s embrace of an exception-free ban on abortion, wary that his politically unpopular position could hurt their bid to take back the chamber.

The Georgia GOP Senate candidate told reporters last week that “there’s no exception in my mind” for abortion. But that’s a step too far for most of the GOP caucus, which is trying to wrest Senate control from Democrats this fall.

“Most of the people I talk to believe there ought to be reasonable restrictions and reasonable exceptions,” said Sen. Rick Scott (R-Fla.), chair of Senate Republicans’ campaign arm. “But every candidate’s going to decide where they are.”

In the wake of the disclosure of a draft Supreme Court opinion that would potentially overturn Roe v. Wade, Senate Republicans are trying to avoid the topic altogether, saying it’s a decision that’s left up to the states. Despite the vast majority of Senate Republicans opposing abortion rights, they are not embracing a total abortion ban — leaving open the chance that several would support exceptions for rape, incest or life of the mother.

When and if Republicans force a vote on abortion restrictions when they have a majority, it’s likely to contain those exceptions — a reflection of the party’s need to balance the views of moderate voters with their conservative base.

“Those exceptions are a sound decision for people who have very strong but differing opinions on these questions,” said Sen. Tom Cotton (R-Ark.) “I respect, and I know, many people who don’t agree with that, many people who believe that no matter how life is formed it’s a precious life. I believe that those are sound, reasonable accommodations for diverse opinions for an issue that sparks a lot of intense feelings.”

A spokesperson for Walker said he is “pro-life and believes these decisions should be reserved for the states.”

Democrats are counting on abortion to be their electoral lightning rod, should Roe be overturned. In the past, Republicans have blown their chances at Senate seats for giving unpopular or flat-out inaccurate responses when asked about acceptable exceptions to an abortion ban.

Former Rep. Todd Akin (R-Mo.) said it’s “really rare” for rape to result in a pregnancy: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.” And former Indiana state Treasurer Richard Mourdock defended his position supporting no exception for rape victims by saying, “even when life begins in that horrible situation of rape, that it is something that God intended to happen.” Both lost Senate races in 2012 after Democrats torched them for those remarks.

Democrats are hoping they can repeat that strategy on a wide scale. Democratic senators expect additional votes on abortion rights once the Supreme Court issues a final decision, and they see comments like Walker’s as fuel for their candidates.

“It’s out of step with where folks are, there’s no question,” said Sen. Gary Peters (D-Mich.), chair of the Democratic Senate campaign arm. “It’s a very extreme position … That’s the wrong place to be.”

Still, Senate Majority Leader Chuck Schumer indicated on Tuesday he’s not planning to bring up narrow legislation focused on protecting those exceptions. He said Democrats “are not going to support any kind of bill that will backtrack on the needs to protect a woman’s right to choose, plain and simple.” Instead, much of the Democratic push will be focused on midterm messaging, such as a virtual roundtable Senate Democrats are holding Wednesday with Democratic state officials including Michigan Gov. Gretchen Whitmer.

In interviews, Senate Republicans declined to go as far as Walker, who Tuesday night clinched his party’s nomination to take on Sen. Raphael Warnock (D-Ga.) in November. Most said they would support the three main abortion exceptions, though Sen. Steve Daines (R-Mont.) said he’d only support an exception “for the life of the mother,” not for rape or incest. Sen. Ron Johnson (R-Wis.), the most vulnerable Senate GOP incumbent this cycle, said he has “always” supported the three exceptions.

Still, Republican support for certain abortion exceptions is of little comfort to Democrats and abortion rights proponents who — at the very least — want to see Roe v. Wade codified. With the exception of Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), the GOP conference opposes that idea.

“What happens is many of the Republicans want to drag it off and say it’s somewhere else,” said Sen. Elizabeth Warren (D-Mass.). “And the fact that any Republican is willing to take an even more extremist view is not really the point. We need to be supporting Roe. That’s what the American people want us to do. So that’s where I put the stick in the ground and hold on.”

A complete ban on abortion is out of step with the vast majority of Americans. According to a Pew Research Center Survey, conducted before the disclosure of the draft opinion, only 8 percent of U.S. adults say there should never be an exception for an abortion. Meanwhile, 61 percent of Americans said abortion should be legal “in all or most circumstances.”

Some state lawmakers are pushing for more abortion restrictions in anticipation of the Supreme Court decision. But that effort backfired in Louisiana, after legislators there rejected a bill that would have classified an abortion as a homicide.

Sen. Lindsey Graham (R-S.C.), who has introduced a bill that would ban abortions after 20 weeks, said that including abortion exceptions to his bill “meant a lot.”

“You get a lot more support from the pro-life voting bloc if you did it that way,” he said, adding that while he understood Walker’s position, “single issue voters don’t decide elections.”

For now, most Senate Republicans are brushing off Walker’s comments.

“If this goes back to the states, he’s not going to get to vote on that,” said Sen. John Cornyn (R-Texas.). “Nor will I. It will be decided at the state level if the draft opinion overruling Roe ends up being the final opinion. So I’m not going to be making those decisions.”

The White House insists that Joe Biden wasn’t abandoning longstanding U.S. policy with his declaration that the U.S. would use military force to defend Taiwan from China. Many of his congressional allies are hoping otherwise.

The president’s advisers insisted that Biden’s comments during his swing through Asia this week weren’t signaling an evolution of America’s decadeslong approach to the Pacific island nation, a doctrine known as “strategic ambiguity.” But it wasn’t the first time that Biden’s staff had to clean up his remarks on the subject of defending Taiwan from Beijing.

And lawmakers see it as a sign that Russia’s war on Ukraine is pushing Biden to get more muscular toward China, despite reservations from his aides.

“There are some in the White House who may feel he went too far, but I think it was a helpful episode in showing the Chinese where his mind and heart were,” said Sen. Richard Blumenthal (D-Conn.), citing “recent experience with another bully” in Russia’s Vladimir Putin.

“The president is taking a lesson from Ukraine that a stronger initial position could be necessary for deterrence,” he added. “The bullies of the world need to know we’re going to take a stand. And if they don’t hear that message with clarity, they may mistake it for weakness.”

The Taiwan Relations Act has governed U.S. policy on the matter since its enactment in 1979. It established “strategic ambiguity,” which states that the U.S. will remain intentionally unclear about whether it would come to Taiwan’s aid in the event of an invasion from China. The country views Taiwan as part of its territory — much as Putin’s Russia has seen Ukraine — and thus refused to recognize its neighbor’s independence.

But recent developments have ignited debates across Washington about whether that policy remains the best deterrent to an invasion.

Biden’s comments Monday at the Quad Leaders’ Summit in Tokyo represented at least the third time since taking office that he has seemed to cast aside strategic ambiguity — only for anonymous White House aides to walk him back, hours later.

Lawmakers said the frequency of the episodes shows that despite the attempted clean up, Biden truly believes that deterring a Chinese invasion of Taiwan requires going beyond selling weapons to the U.S. ally. They say the U.S. needs to convey to China’s Xi Jinping that, like with Russia, there will be consequences for invading a sovereign neighbor.

And if that means abandoning strategic ambiguity, these members of Congress say, so be it.

“He keeps saying this because this is what he believes. It’s his reaction when asked the question on the spot — that, yes, we’ll come to their defense,” Rep. Elaine Luria (D-Va.) said in an interview. “The time for ambiguity is over … We need to say that, yes, if this happens this will be our intended response. That will better direct the decisions that are made.”

Luria, a retired Navy officer, raised eyebrows on the Hill last year when she advocated for sending Biden a preemptive authorization for the use of military force that would allow the president to respond to a Chinese invasion of Taiwan at a moment’s notice.

While there isn’t widespread support for such a move, lawmakers on both sides of the aisle are growing more comfortable with gutting “strategic ambiguity” as Beijing grows increasingly confrontational.

A Chinese invasion of Taiwan is “even more dangerous than the Russian invasion of Ukraine, in my opinion,” Sen. John Cornyn (R-Texas) said. “So we need to deter China and I think the best way to do that is to make clear what our intentions are. [Biden] basically said that, but then muddied the water again.”

Senate Foreign Relations Chair Bob Menendez (D-N.J.) noted in a brief interview Tuesday that the U.S. is already selling both offensive and defensive weapons to Taiwan to help bolster its military. He argued it’s not inconsistent with existing U.S. policy for Biden to declare that the U.S. “would act to its defense.”

“The president very often speaks from the heart,” added Menendez, who recently traveled to Taiwan and tweeted in support of Biden’s remarks on Monday: “Credible deterrence requires both courage and clarity.”

Republicans have diverged on whether the U.S. should provide more clarity on its position, but many slammed Biden this week for the mixed messaging and lamented what appears to be an ongoing debate inside the administration about how forcefully the U.S. should project its intentions.

GOP hawks in the upper chamber said Biden’s initial comments pledging to respond militarily to an invasion of Taiwan were correct.

“He shouldn’t have walked it back. It shows weakness,” said Sen. Todd Young (R-Ind.). “I actually think his instincts were strong, but that’s the sort of message that you want to get right, and I’m shocked he wasn’t better prepared.”

Sen. Tom Cotton (R-Ark.) said Biden “stumbled into what is the right policy for the United States.” Strategic ambiguity should be cast aside, Cotton contended, both because the Chinese now have the military capabilities to invade Taiwan and because Taiwan is a vibrant democracy — neither of which were the case when the U.S. policy was first developed.

“He needs to give a careful, deliberate speech from prepared text that is released in advance that states that the United States’ policy is to come to Taiwan’s aid if China attacks it — so no anonymous White House staffer can reverse it,” Cotton said in an interview. “Left where it is now, we get the worst of both worlds, provocation without deterrence.”

Many Republicans who were reluctant to support a $40 billion military and humanitarian aid package for Ukraine last week rationalized their votes in favor of the measure by arguing that it would send an unmistakable message to China, which lawmakers generally believe is a bigger long-term threat than Russia. Drawing parallels between the hot war in Russia-Ukraine and the long-simmering China-Taiwan conflicts convinced more Republicans who were initially wary of the price tag of the Ukraine package to vote for it.

Senate Minority Leader Mitch McConnell, who pushed hard for the Ukraine aid bill, contended on Tuesday that “the single most important thing we can do to push back against President Xi is to help the Ukrainians beat Putin.”

“My suggestion to this administration [is to] sell to the Taiwanese the weapons they would need that are appropriate for any potential Chinese invasion,” McConnell said. “That is the single strongest thing we can do to help the Taiwanese, just like we’re helping the Ukrainians.”

Even as conservative Republicans and Democratic China hawks aligned to cheer Biden’s potential movement, though, other top Democrats dismissed the controversy over the president’s remarks. For some in his party, all Biden did was reaffirm the exact definition of the U.S. policy.

“In order to be strategically ambiguous, you sometimes actually have to be ambiguous,” Sen. Chris Murphy (D-Conn.) said in a brief interview. “You are watching strategic ambiguity in real time.”

The FDA’s top official will acknowledge a string of failures that contributed to the current infant formula shortages when he faces lawmakers on Capitol Hill on Wednesday.

In their prepared testimony released Tuesday evening, FDA Commissioner Robert Califf and several senior officials for the first time lay out a timeline of the agency’s response to reports last fall that infants had been hospitalized after consuming formula made at an Abbott Nutrition plant in Sturgis, Mich. And they say a whistleblower report alleging food safety problems at the plant, which was mailed in October, did not reach the FDA’s highest rungs until mid-February, despite being sent directly to then-acting Commissioner Janet Woodcock and others.

The Abbott plant was temporarily shut down in February, after an FDA inspection in January found five different strains of a potentially deadly bacteria known as Cronobacter sakazakii, the bacteria that sickened the four infants. Two of those infants died. At the same time, Abbott also issued a recall of some formula made at the plant, exacerbating a shortage of infant formula that began during the pandemic.

The FDA now finds itself at the center of a political firestorm over the shortages, which have sent parents scrambling for alternative sources. The need is particularly acute for infants and children who rely on specialty formulas due to health conditions — a growing number of infants with special dietary needs have been hospitalized.

Up until now, however, FDA officials declined to comment on why it took months between the first report of a bacterial infection linked to the plant last September, their inspection this winter, which turned up a range of food safety problems, and the recall. But the new details aren’t likely to tamp down the criticism of the agency, rather, they are already fueling further outrage from lawmakers.

“The FDA, at every step of this process, dropped the ball,” Rep. Rosa DeLauro (D-Conn.), chair of the House Appropriations Committee, told POLITICO in an interview about the new details revealed in the testimony. “It put infants at risk.”

The FDA timeline laid out in the prepared testimony acknowledges the FDA didn’t hold interagency discussions about potential supply chain disruptions until Feb. 14, three days before the Abbott Nutrition plant at the center of the current shortages shut down and issued a formula recall. And the agency didn’t notify the Agriculture Department, which oversees a critical federal nutrition program that purchases about half of the nation’s infant formula, about potential disruptions until a week before the Abbott plant shut down. The program, known as WIC, serves 1.2 million infants from low-income families. Abbott supplies nearly half of all infant formula provided through WIC state contracts.

The testimony also blames “mailroom issues” for the fact that senior FDA officials, including Woodcock and FDA’s top food safety official, Susan Mayne, did not receive hard copies of the whistleblower report from last October detailing alarming concerns about the Abbott plant, including poor food safety practices and that officials there had falsified documents and intentionally information from FDA inspectors. The FDA did not interview the whistleblower until December.

According to Califf’s testimony, Woodcock and Mayne eventually received the whistleblower report via email from another FDA staffer on Feb. 14, three days before the recall. The agency says copies of the whistleblower report sent to Mayne and another FDA official were found in the FDA’s mailroom in May, but officials have yet to locate the copy sent to Woodcock. It was “likely due to COVID-19 staffing issues” and “a mailroom analysis is underway,” the prepared remarks state.

The FDA timeline does say other FDA officials overseeing infant formula and regulatory affairs received a copy of the 34-page report last October. Mayne and Frank Yiannas, FDA’s deputy commissioner for food policy and response, will testify alongside Califf on Wednesday. As POLITICO has reported, Mayne and Yiannas do not get along and it’s created tension at the senior levels of an agency already struggling to make decisions.

But Woodcock, whom Califf assigned to help oversee the agency’s food divisions in the midst of the formula fallout, will not appear before the committee.

Senior leaders at Abbott and two other major formula manufacturers will also testify before Congress on Wednesday.

DeLauro was not satisfied with the agency’s explanation for its slow response to the whistleblower report. “Take responsibility. If you are the director, if you are the acting director, then you have to know what the hell is going on,” said DeLauro, who has criticized the FDA for allowing Woodcock to also lead the internal review of its response.

“Who told staff that they could interview the whistleblower? You know what, let me step back a second, who’s in charge?” DeLauro added.

Califf’s testimony also addresses why it took the FDA until the end of January to begin its inspection of Abbott’s Sturgis plant, despite receiving warnings last fall. For several months after the initial reports of bacterial infections, Califf says the FDA struggled to match formula samples to the specific bacterium, which is known to grow in infant formula and cause rare but potentially fatal illnesses in babies. A Covid-19 outbreak among the plant’s staff in early January further pushed back the inspection’s launch.

When the FDA’s inspection team finally entered the plant on Jan. 31, they “observed significant operational deficiencies,” according to the testimony.

“The totality of evidence obtained during our inspection caused FDA to conclude that infant formulas produced at this plant were produced under insanitary conditions and may be contaminated with Cronobacter,” the testimony says. When the FDA got back positive samples of Cronobacter from the January inspection, Califf says they alerted Abbott and told the company it should issue a recall.

Despite the delays detailed in the timeline, the testimony argues that FDA “since the first day…has worked tirelessly with U.S. government partners to mitigate the supply chain disruption for both regular and specialty formulas.” But lawmakers have questioned why it wasn’t until May 16 that the FDA and Abbott agreed on a deal to reopen the Sturgis plant.

White House and USDA officials have privately complained about the FDA’s decision not to warn other parts of the administration earlier, while allowing the situation to grow into a food security crisis for American families and a political crisis for President Joe Biden, just months ahead of the November midterms.

The White House has also ducked questions about its own timeline in responding to the recall and ensuing shortages. Asked by POLITICO about when the FDA told the White House of the issues at the Sturgis plant and any concerns about potential shortages, a senior administration official said they would not comment on “internal communications.” “The recall became public on February 17 and we certainly have been very public about our activity in this space since then,” the official added.