Law & Courts

Schools at Center of Feud Over N.C. Transgender Law

By Evie Blad — May 17, 2016 5 min read
In this image taken with a fisheye lens, the doors to public restrooms are propped open at a office complex on Monday, May 9, 2016 in Anaheim, Calif. A California lawmaker says he'll bring up for a vote Monday his proposal requiring single-stall public restrooms to be gender-neutral, hours after North Carolina Gov. Pat McCrory sued the federal government to defend that state's law restricting access to restrooms based on the gender listed on a person's birth certificate.
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The Obama administration has put the nation’s school districts on notice that prohibiting transgender students from using the restrooms and locker rooms that match their gender identity is a violation of federal law.

That issue has stirred sharp debate as schools, districts, and state legislatures have considered policies that would restrict such access on the basis of biological sex. The order on facilities access is part of a broader list of obligations federal officials said districts have to their transgender students, detailed in the sweeping civil rights guidance issued late last week.

Crafted by the U.S. departments of Education and Justice, the guidance seeks to clarify the administration’s interpretation of Title IX of the Education Amendments of 1972, which bars sex discrimination in schools, colleges, and universities that receive federal funds.

The “dear colleague” letter to the nation’s 14,000 school districts came the same week federal officials engaged in a standoff with North Carolina over a new law that is the nation’s first to set state-level restrictions on the restrooms and locker rooms transgender people can use in the state’s public buildings, including schools.

While the administration has increasingly asserted in recent years that Title IX prohibits discrimination on the basis of gender identity as well as biological sex, advocates for transgender students have called on the Education Department to spell out schools’ legal obligations to transgender students in direct instructions. Calls from local education officials and parents about the issue have also increased, U.S. Secretary of Education John B. King Jr. said in a statement.

North Carolina Gov. Pat McCrory speaks during a news conference in Raleigh, N.C., last week announcing that his administration sued the federal government in a fight over a new state law that requires transgender people to use the public restroom matching the sex on their birth certificates.

“Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law,” King said. “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.”

The rules on school facilities access in the guidance drew immediate reaction from critics of the administration, who accused it of overstepping its authority by making new laws instead of interpreting existing ones. But the letter also includes other legal obligations for schools. According to the guidance, schools must:

  • Respond promptly and effectively to sex-based harassment of any student, “including harassment based on a student’s actual or perceived gender identity, transgender status, or gender transition";
  • Allow students to access and participate in sex-segregated classes, activities, and facilities that align with their gender identity; and
  • Keep students’ transgender status private unless they choose to disclose it to their peers.

Students who are uncomfortable in shared facilities are not required to use them, the letter says.

“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 letter 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.”

Dueling Suits Over N.C. Law

Because guidance from the administration is considered an interpretation of existing laws, it is not legally binding, school law experts have said. And, even before the letter was released last week, the Education Department’s interpretation of Title IX had been challenged in court.

North Carolina Gov. Pat McCrory, a Republican, filed a federal lawsuit against the Justice Department last week after the agency—arguing that the state’s new law requiring people to use facilities that correspond to their biological sex violates federal employment laws and Title IX—gave state leaders a tight deadline to say how they would remedy the situation.

“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions under Title VII [of the Civil Rights Act of 1964] and Title IX,” McCrory said.

The Justice Department responded with a suit of its own, and the state’s schools and colleges feared they’d lose billions of dollars in federal money as a result of the dispute. But White House Press Secretary Josh Earnest said late last week that the administration would not cut off funds until the federal courts had weighed in on the issue.

Other states, including Kansas, South Dakota, and Tennessee, have considered but not yet enacted bills restricting restroom access for transgender students in public schools.

U.S. Attorney General Loretta Lynch speaks at a news conference in Washington last week, calling North Carolina’s new law “state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security, a right taken for granted by most of us.”

After filing the Justice Department’s suit against North Carolina, U.S. Attorney General Loretta Lynch told reporters she would “retain the option” of withholding funding from the state.

“They created state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security, a right taken for granted by most of us,” Lynch said.

The North Carolina law is the subject of two other lawsuits—one by the American Civil Liberties Union of North Carolina, which opposes the law, and one by a group of students and parents challenging the federal agencies’ interpretation of Title IX.

In April, a panel of the 4th U.S. Circuit Court of Appeals, in Richmond, Va., upheld the federal position on Title IX as valid. The panel ruled that a lower-court judge had erred when he did not defer to the Education Department’s interpretation in a case over a transgender student’s right to use the boys’ restroom at school. Citing precedent, the appellate judges ruled that, when local and federal agencies offer valid but conflicting interpretations of a federal regulation, courts should side with the federal agency. The Virginia district at the heart of that case has appealed to the full 4th Circuit court.

And, after an Illinois district changed its policies to allow a transgender student access to the girls’ locker room, following a public standoff with the Education Department’s office for civil rights, families sued the federal agency, arguing that its interpretation of Title IX is inconsiderate of their children’s privacy rights.

The new guidance drew praise from the National Association of Secondary School Principals, which had recently requested clear direction, and the Gay Lesbian and Straight Education Network, an advocacy group.

“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 in a statement. “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,” she said. “Indeed, the United States government itself has their backs.”

A version of this article appeared in the May 18, 2016 edition of Education Week as Feds to Schools: Don’t Restrict Transgender Access

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