By Evie Blad and Lesli Maxwell
Public schools must allow transgender students to use the restrooms and locker rooms that match their gender identity, the Obama administration announced Friday in a letter to the nation’s school districts.
Amid an escalating legal battle with the state of North Carolina that has thrust that state’s schools into the center of a fight over transgender rights, the letter to the nation’s roughly 14,000 school districts made clear the administration’s position that restricting transgender students’ access to restrooms and locker rooms is discriminatory and could put federal funding at risk.
The “dear colleague” letter from the U.S. Department of Justice and the U.S. Department of Education also spelled out out other obligations schools have to transgender students.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” said U.S. Secretary of Education John B. King Jr. in a statement. “This guidance further clarifies what we’ve said repeatedly —that gender identity is protected under Title IX. Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law. We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”
Civil rights guidance from the agencies does not carry the force of law, school law experts have said, but it serves as a warning of possible enforcement actions, including loss of federal funding, for schools that run afoul of the agencies’ interpretation.
Among the directions included in the guidance:
- Educators must respond quickly to harassment, “including harassment based on a student’s actual or perceived gender identity, transgender status, or gender transition;"
- Schools should honor students’ gender identity, even if it differs from the biological sex listed on their educational records;
- Schools must allow transgender students to participate in and access sex-segregated activities, facilities, and classes consistent with their gender identity; and
- Educators must keep students’ transgender status private unless they chose to disclose it to their peers.
“The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity,” the guidance says. “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.”
The Education and Justice Departments have increasingly asserted in recent years that, under Title IX, restroom access at public schools, colleges, and universities that receive federal funding should be determined by gender identity, not sex at birth.
That position has faced some pushback from conservative groups, policy makers, and local districts at the center of civil rights disputes. It is at issue in several ongoing court cases.
Though the Obama administration has outlined its position in federal court filings and public statements, advocates for transgender students have long pushed for clear, specific civil rights guidance about how public schools are legally obligated to accommodate students whose gender identity does not match their biological sex at birth.
The National Association of Secondary School Principals praised the guidance.
“Transgender students are already at high risk for suicide and other destructive behaviors,” NASSP President Michael Allison said in a statement. “While some statehouses see a political issue, we see the faces of our kids who are hurt by those policies every day. Principals and others in schools look for ways to embrace these marginalized students, but policies in some states push them further to the margins. We find that unacceptable and we’re glad the Department of Ed is taking a stand.”
The department’s position on Title IX was recently upheld by the 4th U.S. Circuit Court of Appeals, in Richmond, Va., which ruled in a 2-1 decision that a lower court judge erred when he did not defer to the Education Department’s interpretation of the law.
The federal appellate panel sent the original case back to the lower court to reconsider its denial of a preliminary injunction that would allow a transgender male high school student in Gloucester County, Va., to use the boy’s restroom at school.
It’s clear that not everyone views the department’s position as settled law. The Gloucester County school board, for example, voted unanimously to appeal the three-judge panel’s decision en banc to the full 4th Circuit.
In North Carolina, four lawsuits have been filed over the Justice Department’s assertion that a new state law that includes provisions that restrict restroom access in public schools by biological sex violates civil rights law. Two of those lawsuits—one by Republican Gov. Pat McCrory, and one by a group of students and parents—argue that the Obama administration’s interpretation of the law is invalid.
In Illinois, where a surburban Chicago district agreed to grant a transgender girl unrestricted access to the girls’ locker room following a dispute with the U.S. Department of Education’s office for civil rights, a group of parents and students filed suit last week, arguing that the decision compromised female students’ right to privacy.
“As a direct result of Defendants’ Policies and actions, every day these girls go to school, they experience embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation, and loss of dignity because they will have to use the locker room and restroom with a biological male,” the lawsuit says.
Reactions to Transgender Guidance
As news of the guidance spread Thursday night, groups on all sides of the issue were quick to respond.
“It is too easy to lose sight of the actual students in the eye of the current political storm,” GLSEN Executive Director Eliza Byard said. “This guidance serves to re-center their rights and the need to support them in overcoming the severe challenges they can face in the school environment, including harassment, violence and discrimination. Tonight they know that they are not alone in facing those challenges. Indeed, the United States government itself has their backs.”
Calling it “blackmail,” Texas Lt. Gov. Dan Patrick urged superintendents in the Lone Star State not to obey the guidance, even if that means losing the roughly $10 billion in federal education funds the state receives annually.
“We’re not going to be blackmailed by the president, and we’re not going to sell out our school children for 30 pieces of silver,” he told reporters.
Others responded on Twitter.
Huge moment for trans youth and our country. Message is clear: Discrimination will not stand in America’s schools. //t.co/tS9rvZySxq
-- Chad Griffin (@ChadHGriffin) May 13, 2016
-- Politics K-12 (@PoliticsK12) May 13, 2016
Biology--not feelings--is the only sensible basis for ensuring privacy & safety in bathrooms, locker rooms, etc. //t.co/JhMBCJuOCL
-- AllianceDefends (@AllianceDefends) May 13, 2016
Is there any issue the Obama Administration believes can be left to state and local government?
-- Ben Sasse (@BenSasse) May 13, 2016
-- Greg Abbott (@GregAbbott_TX) May 13, 2016
- 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.