White House Sends Schools Guidance On Transgender Access To Bathrooms

May 13, 2016
Originally published on May 13, 2016 5:49 pm

The Obama administration issued guidance to schools Friday, saying they must allow transgender students to use the bathroom that matches their gender identity.

The administration acknowledges this is "new terrain" for some people and says it wants to help school districts avoid running afoul of civil rights laws.

The Department of Justice is already in a legal fight with North Carolina over its so-called bathroom law. By reaching out to all 50 states, the administration appears to be upping the ante.

Earlier this week, the department sued North Carolina over its law, which says people must use the bathroom that corresponds to the sex on their birth certificates.

Attorney General Loretta Lynch — a North Carolina native — called the law discriminatory. "We see you, we stand with you," she said, speaking directly to transgender people, "and we will do everything we can to protect you going forward."

The administration now has extended that message to schools, not just in North Carolina, but across the country. Some will see that as the administration spoiling for a fight. Although the departments of Justice and Education insist they're just trying to provide some guidance to the "many parents, schools and districts [that] have raised questions about this area of civil rights law."

Under federal law, Title IX, schools that receive federal funding are not allowed to discriminate against students on the basis of sex. The guidance sent out to school districts on Friday makes it clear that as far as the departments of Justice and Education are concerned, that word "sex" includes gender identity.

That's not a new position for the federal government; officials have said that before. But the message was amplified this week by the North Carolina controversy. And the administration is making it very clear to school districts that if they discriminate against transgender students, they could be in violation of Title IX, and they could be at risk of losing federal money.

In practical terms, there are a variety of different obligations that school districts have, including responding promptly and effectively if a transgender student is harassed, safeguarding transgender students' privacy and using proper pronouns.

The main question seems to be about bathrooms or locker rooms. Here the administration's guidance is very clear: A school must allow transgender students to use the bathroom consistent with their gender identity. A school cannot require transgender students to use individual restrooms or locker rooms when other students are not required to do so. Schools can, however, offer individual restrooms to all students.

Meanwhile, the court fight with North Carolina goes forward. The administration's interpretation that the word "sex" in Title IX also covers gender identity — is just that. It's the administration's interpretation. And courts may reach a different conclusion. While the legal fight plays out though, the administration is trying to establish some favorable facts on the ground.

In addition to the "Dear Colleague" letter, the Department of Education has produced a 25-page booklet outlining some positive examples of how school districts have handled transgender students. It's not a mandate, but it's intended to offer some suggestions of what's worked and what other districts might want to copy.

Updated at 12 p.m. ET:

At a press conference, Texas Lt. Gov. Dan Patrick — who spoke out Tuesday to call for the resignation of a Texas superintendent who issued guidelines meant to support transgender students — responded to the administration's announcement.

He called the guidelines for accommodating trans students "the biggest issue facing families and schools in America since prayer was taken out of public schools."

"[Obama] says he is going to withhold funding if schools do not follow the policy. Well, in Texas he can keep his 30 pieces of silver. We will not yield to blackmail from the president of the United States," Patrick said. He went on to suggest that if the administration did withhold funds, low-income students who rely on free breakfasts and lunches would be the most affected.

He also said that opposition to the guidelines "has nothing to do with anyone being against a transgender child or a gay child. This has everything to do with keeping the federal government out of local issues."

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RENEE MONTAGNE, HOST:

The debate in North Carolina over civil rights protections for LGBT people is going national. Today, the Obama administration will inform school districts throughout the country that they must allow transgender students to use the bathroom that matches their gender identity. The administration acknowledges that this is quote, "new terrain for most people." It says it wants to help school districts avoid running afoul of civil rights laws. NPR's Scott Horsley joins us now to talk about this. Good morning.

SCOTT HORSLEY, BYLINE: Good morning, Renee.

MONTAGNE: OK. So the Justice Department is already in a legal fight with North Carolina over what's come to be known as that state's bathroom law. By taking this to all 50 states, the administration - what? - it seems to be upping the ante.

HORSLEY: Well, it certainly looks that way. You know, all this week we've been talking about North Carolina's HB2. And among other things, that so-called bathroom law requires people in public buildings to use the bathroom that corresponds to the gender on their birth certificate. The federal government challenged that law in court this week.

And in announcing that lawsuit, Attorney General Loretta Lynch, who is a North Carolina native, spoke directly to transgender people. She said, we see you. We stand with you. And we'll do everything we can to protect you going forward. Today, the administration is extending that message to schools not just in North Carolina, but across the country. Some will see that as the administration spoiling for a fight, but the Justice and Education Departments say they're just trying to provide some guidance to the many parents and school districts that have raised questions about this area of civil rights law.

MONTAGNE: Well, elaborate for us on what this guidance is.

HORSLEY: Under federal law of Title IX, schools that get federal funding are not allowed to discriminate against students on the basis of sex. The guidance going out to school districts today makes it clear that as far as the Justice Department and the Education Department are concerned, that word, sex, includes gender identity. Now, that's not a new position for the federal government. They've said that before, but the message is getting amplified this week by the North Carolina controversy. And the administration's making it very clear to school districts, if they discriminate against transgender students, they will be considered in violation of Title IX. And they could be at risk of losing federal funding.

MONTAGNE: And what does this mean in practical terms?

HORSLEY: Well, there are a variety of different obligations that school districts have. They're supposed to respond promptly if transgender students are harassed. They're supposed to safeguard transgender students' privacy. They're supposed to use the proper pronouns. But you know, the question of the day, or the week, seems to be about bathrooms and locker rooms.

And here, the administration's guidance is very clear. A school must allow transgender students to use the bathroom consistent with their gender identity. A school cannot require transgender students to use individual bathrooms or locker rooms if other students are not required to do so. However, schools can offer individual restrooms to all students.

MONTAGNE: And - so bring us back to the court fight with North Carolina. What are the implications of today's letter?

HORSLEY: Well, that court battle goes forward. And I should say the administration's interpretation that the word sex in Title IX also covers gender identity is just that. It's the administration's interpretation. Courts could come to a different conclusion. While that legal fight's playing out though, the administration's trying to establish some favorable facts on the ground. And in addition to its dear colleague letter going out today, the Education Department has produced a 25-page booklet outlining sort of best practices that other school districts have used that districts could turn to as sort of a guide if they want to emulate.

MONTAGNE: Scott, thanks very much.

HORSLEY: It's my pleasure, Renee.

MONTAGNE: That's NPR's Scott Horsley. Transcript provided by NPR, Copyright NPR.