US gives directive to schools on transgender bathroom access
Posted May 13, 2016
WASHINGTON — Public schools must permit transgender students to use bathrooms and locker rooms consistent with their chosen gender identity, according to an Obama administration directive issued amid a court fight between the federal government and North Carolina.
The guidance from leaders at the departments of Education and Justice says public schools are obligated to treat transgender students in a way that matches their gender identity, even if their education records or identity documents indicate a different sex.
"There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," Attorney General Loretta Lynch said in a statement accompanying the directive, which is being sent to school districts Friday.
In issuing the guidance, the Obama administration is wading anew into a socially divisive debate it has bluntly cast in terms of civil rights. The Justice Department on Monday sued North Carolina over House Bill 2, a bathroom access law that it said violates the rights of transgender people, a measure that Lynch likened to policies of racial segregation and efforts to deny gay couples the right to marry.
North Carolina Gov. Pat McCrory said the government's stance "changes generations of gender etiquette and privacy norms which parents, children and employees have expected in the most personal and private settings of their everyday lives." As he did Monday in announcing his administration's efforts to seek judicial support for House Bill 2, he called on Congress and the courts to stop what he calls an overreach by the Obama administration.
"Both non-discrimination and privacy are basic tenets of our great country," McCrory said in a statement. "States and local governments cannot have a myriad of different laws which cause confusion and inconsistent application. However, the executive branch of the federal government does not have the authority to be the final arbiter. We all must work together to seek answers and common sense clarification."
The guidance does not impose any new legal requirements. But officials say it's meant to clarify expectations of school districts that receive funding from the federal government. Educators have been seeking guidance on how to comply with Title IX, which prohibits sex discrimination in educational programs and activities that receive federal funding, Education Secretary John B. King said in a statement.
"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," King said.
Under the guidance, schools are told that they must treat transgender students according to their chosen gender identity as soon as a parent or guardian notifies the district that that identity "differs from previous representations or records." There is no obligation for a student to present a specific medical diagnosis or identification documents that reflect his or her gender identity, and equal access must be given to transgender students even in instances when it makes others uncomfortable, according to the directive.
"As is consistently recognized in civil rights cases, the desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students," the guidance says.
The administration is also releasing a separate 25-page document of questions and answers about best practices, including ways schools can make transgender students comfortable in the classroom and protect the privacy rights of all students in restrooms or locker rooms.
The move was cheered by Human Rights Campaign, a gay, lesbian and transgender civil rights organization, which called the guidelines "groundbreaking."
"This is a truly significant moment not only for transgender young people but for all young people, sending a message that every student deserves to be treated fairly and supported by their teachers and schools," HRC President Chad Griffin said in a statement.
The guidance comes days after the Justice Department and North Carolina filed dueling lawsuits over a new state law that says transgender people must use public bathrooms, showers and changing rooms that correspond to the sex on their birth certificate. The administration has said the law violates the Civil Rights Act.
North Carolina officials were quick to condemn the directive, and they urged schools to ignore it.
"North Carolina public schools in receipt of the President's letter are reminded that there is a binding state law on the books governing bathroom policy and the President's non-binding directive is merely his attempt to push his version of a social policy on our state with no Constitutional authority to do so. It should be rejected as a matter of principle and policy," Lt. Gov. Dan Forest said in a statement.
"The last time I checked, the United States is not ruled by a king who can bypass Congress and the courts and force school-aged boys and girls to share the same bathrooms and locker rooms," state Senate President Pro Tem Phil Berger said in a statement. "This is an egregiously unconstitutional overreach of the president's authority, and North Carolina's public schools should follow state law, which protects our children’s safety and privacy."
"This is no longer a North Carolina issue, this is a national issue. We all have to wonder what other threats to common sense norms may come before the sun sets on the Obama Administration," state House Speaker Tim Moore said in a statement.