Public schools must , the Obama administration announced Friday in a letter to the nation鈥檚 school districts.
Amid an escalating legal battle with the state of North Carolina that has thrust that state鈥檚 schools into the center of a fight over transgender rights, the letter to the nation鈥檚 roughly 14,000 school districts made clear the administration鈥檚 position that restricting transgender students鈥� access to restrooms and locker rooms is discriminatory and could put federal funding at risk.
The 鈥渄ear colleague鈥� 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.
鈥淣o student should ever have to go through the experience of feeling unwelcome at school or on a college campus,鈥� said U.S. Secretary of Education John B. King Jr. in a statement. 鈥淭his guidance further clarifies what we鈥檝e said repeatedly 鈥攖hat 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.鈥�
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鈥� interpretation.
Among the directions included in the guidance:
- Educators must respond quickly to harassment, 鈥渋ncluding harassment based on a student鈥檚 actual or perceived gender identity, transgender status, or gender transition;"
- Schools should honor students鈥� 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鈥� transgender status private unless they chose to disclose it to their peers.
鈥淭he Departments interpret Title IX to require that when a student or the student鈥檚 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鈥檚 gender identity,鈥� the guidance says. 鈥淯nder 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.鈥�
Restroom Access
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.
鈥淭ransgender students are already at high risk for suicide and other destructive behaviors,鈥� NASSP President Michael Allison said in a statement. 鈥淲hile 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鈥檙e glad the Department of Ed is taking a stand.鈥�
The department鈥檚 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鈥檚 .
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鈥檚 restroom at school.
It鈥檚 clear that not everyone views the department鈥檚 position as settled law. The Gloucester County school board, for example, voted unanimously to appeal the three-judge panel鈥檚 decision en banc to the full 4th Circuit.
In North Carolina, over the Justice Department鈥檚 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鈥攐ne by Republican Gov. Pat McCrory, and one by a group of students and parents鈥攁rgue that the Obama administration鈥檚 interpretation of the law is invalid.
In Illinois, where a suburban Chicago district agreed to grant a transgender girl unrestricted access to the girls鈥� locker room following a dispute with the U.S. Department of Education鈥檚 office for civil rights, a group of parents and students filed suit last week, arguing that the decision compromised female students鈥� right to privacy.
鈥淎s a direct result of Defendants鈥� 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,鈥� 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.
鈥淚t is too easy to lose sight of the actual students in the eye of the current political storm,鈥� GLSEN Executive Director Eliza Byard said. 鈥淭his 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.鈥�
Calling it 鈥渂lackmail,鈥� Texas Lt. Gov. Dan Patrick , even if that means losing the roughly $10 billion in federal education funds the state receives annually.
鈥淲e鈥檙e not going to be blackmailed by the president, and we鈥檙e not going to sell out our school children for 30 pieces of silver,鈥� he told reporters.
Others responded on Twitter.
Huge moment for trans youth and our country. Message is clear: Discrimination will not stand in America鈥檚 schools.
-- Chad Griffin (@ChadHGriffin)
. praises new guidance: 鈥淭he timing of this guidance can help to quell the unfounded fears鈥�
-- Politics K-12 (@PoliticsK12)
Biology--not feelings--is the only sensible basis for ensuring privacy & safety in bathrooms, locker rooms, etc.
-- AllianceDefends (@AllianceDefends)
Is there any issue the Obama Administration believes can be left to state and local government?
-- Ben Sasse (@BenSasse)
I announced today that Texas is fighting this. Obama can鈥檛 rewrite the Civil Rights Act. He鈥檚 not a King.
-- Greg Abbott (@GregAbbott_TX)
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