In many corners of the media, response to Friday’s Obama administration guidance about how schools should treat transgender students made it seem as if the directions came with no warning or precedent.
Among other things, that guidance put schools on notice that, under the the Department of Education’s interpretation of Title IX, they must allow transgender students to access restrooms and locker rooms that correspond to their gender identity.
But followers of school law and transgender student advocacy will tell you that the federal agency already enforced this interpretation in the past and that many schools were already making such accommodations.
Many States Already Have Laws About Transgender Students
Even without the federal push, many states have already required their schools to honor the gender identity of transgender students in decisions like pronoun use, facilities access, and response to bullying.
In many states, transgender students have won courtroom battles under state-level anti-discrimination laws that apply specifically to schools or more general state policies that list gender identity as a protected class.
“Increasingly, states are explicitly addressing discrimination against LGBT elementary and high school students,” the Human Rights Campaign says on its website. “These protections can be in the form of statutory law, regulation or ethical codes of conduct for teachers.”
In this interactive map from the organization, the states with school non-discrimination laws and policies that include gender identity are in dark brown.
Schools Have Acted on Their Own to Respond to Transgender Students’ Needs
Even in states without anti-discrimination laws, many schools have often worked on a case-by-case basis to meet the needs of what experts call a small but growing number of transgender students.
In 2014, I wrote about a new California law related to transgender students that survived a recall attempt by opponents. But, even before that law took effect, the Lost Angeles Unified School District had been working for years under its own policy to accommodate students’ gender identities:
Without a legally prescribed method for educators to determine whether a student is legitimately transgender, students are likely to "game the system" and invoke it to use whatever school restroom they want, the law's opponents say. But the 640,000-student Los Angeles Unified School District, which has had a policy for transgender students that is very similar to AB 1266 since 2005, has never had a problem with it, said Judy E. Chiasson, the district's diversity program coordinator. "Being transgender is not something that one does willy-nilly," she said in an interview with Education Week. "If someone was going to try to declare themselves transgender just so they could sneak into the girls' restroom for lecherous reasons, we would absolutely intervene." The district's principals design accommodations for transgender students on a case-by-case basis, typically after meeting with their parents, said Ms. Chiasson, who said she assists with fewer than 10 consultations with transgender students in a year. The district doesn't track how many students it accommodates under the rule, she said. "
And schools have said the same in states that are viewed as less progressive. For example, when South Dakota’s legislature debated a rule that would have restricted facilities access based on biological sex, schools there said they had already worked on a case-by-case basis to meet the needs of transgender students. That law ultimately passed the legislature before it was vetoed by the governor, who said he favored local solutions to the issue.
Even in North Carolina, the first state to pass state-level restrictions on facilities access in public buildings and schools, schools have not changed their policies to comply with the new state “bathroom bill,” known as H.B. 2, education Superintendent June Atkinson told McClatchy newspapers after the federal guidance was issued Friday. Several school boards have spoken against the bill or filed resolutions in opposition.
“In Wake County schools, for example, transgender students are able to use the bathrooms that match their gender identities in most instances,” the news agency reports.
Opposition to Transgender Student Guidance
That’s not to say that it doesn’t matter that the Obama administration issued these instructions to the nation’s schools or that everyone supports the move.
Transgender student advocates pointed to persistent problems, such as a transgender boy who was suspended for using the boys bathroom, in calling for the guidance.
But opponents argue the Obama administration made a big statement by releasing the rule, especially after a week of battling with North Carolina over its law. If schools are already addressing the issue, there isn’t a need for the federal rule, some have said.
A quick assessment of reactions from conservative lawmakers shows that they believe one or more of the following:
- The federal interpretation of Title IX is incorrect;
- This issue is best left to state or local decision makers; or
- Schools should restrict restroom and locker room access based on biological sex.
And, while many professional education groups supported the new guidance, some expressed hesitation Friday. The National School Boards Assocation, for example, issued this statement:
On April 10, NSBA issued a comprehensive guide, 'Transgender Students in Schools,' to help school districts navigate the unsettled law on gender identity and Title IX. Decisions impacting the day-to-day activities within our nation's schools are inherently local and NSBA's guidance seeks to inform those local decisions by clarifying existing law. The guidance issued today by the Departments of Education and Justice adds another voice to an ongoing conversation about how gender identity is addressed, and expresses an interpretation of Title IX that is unsettled law. A dispute about the intent of the federal law must ultimately be resolved by the courts and the Congress."
Photo: The doors to public restrooms are propped open at a office complex in Anaheim, Calif. --Chris Carlson/AP
- Don’t Limit Transgender Restroom Access, Feds Say
- Crowd Sings ‘Jesus Loves Me’ to Stop Discussion of Transgender Students
- Federal Suit: N.C. Law Restricting School Restroom Access Violates Title IX
- School Districts Confront Transgender Student Policies
- Duncan on Transgender Students: Ed. Dept. Has ‘Tried to Be As Clear As We Can’
- Lawmakers Renew Push to Increase Protections for LGBT Students in Schools
A version of this news article first appeared in the Rules for Engagement blog.