The Obama administration is directing public schools across the country to let transgender students use bathrooms that match their gender identity, a move that will expand nationally the argument over North Carolina’s controversial bathroom law.
The letter going out Friday from officials of the Education and Justice departments sets out the agencies’ view of what schools need to do under current federal law to provide an environment for students free of discrimination.
The letter, first reported by The New York Times, carries no specific threat for schools that do not comply. But the threat is implicit because violations of federal civil rights law can lead to a loss of federal aid to a school district, or enforcement action by the Justice Department.
The letter amplifies a national debate over gender identity and privacy that was kicked off by North Carolina’s law declaring that transgender people must use public bathrooms, showers and changing rooms that match the gender on their birth certificates. The state’s Legislature adopted the law to block an effort by the city of Charlotte that would have allowed transgender individuals to use facilities for the sex with which they identify.
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The Justice Department and the state of North Carolina have already sued each other in federal court, with both sides seeking a ruling on whether the state law conflicts with federal civil rights legislation adopted half a century ago.
North Carolina officials argue that their law protects people who do not want to use private facilities with people of the opposite biological gender.
Attorney General Loretta Lynch, in announcing that the federal government would take the state to court, had condemned the North Carolina law as “state-sponsored discrimination.”
The dispute is far from resolved by either of the Obama administration actions this week. Their legal interpretation may empower some school districts that already agree with the administration, but those who disagree can probably just wait Obama out until his term ends.
White House officials said that no federal agencies would withhold any kind of aid until the issue has worked its way through the courts.
The Obama administration bases its view on Title IX of the civil rights law, which says that schools receiving federal money can’t discriminate based on a student’s sex.
Officials concede that the law was not adopted with transgender individuals in mind, but say that discriminating against a student based on gender identity is a form of improper sex discrimination.
“The litigation and new suits arising from the guidance will take time to resolve at the district and appellate levels, and litigants may seek stays,” said Carl Tobias, professor at the University of Richmond law school. “All of these suits may essentially prevent implementation until Obama has left office.”
Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law.
Secretary of Education John B. King Jr.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” U.S. Secretary of Education John B. King Jr. said in a written statement.
“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.
Conservative critics are responding with fury to what they see as another unilateral action by Obama without approval of lawmakers.
Such deeply personal issues should be discussed and decided openly, said Rep. John Kline, a Minnesota Republican and chairman of the House Education and the Workforce Committee.
“This latest edict disregards the will and concerns of millions of students, parents, teachers, school administrators and religious leaders,” said Kline. “The secretary has the audacity to say this will promote an environment free of fear and discrimination, but what about the students, parents, and families who don’t share the president’s personal views?”
School board members are perfectly capable of handling such questions, said Rep. Jim Jordan, R-Ohio, a conservative leader in the House.
“There is no need for a blanket federal restroom policy that covers every school in America, especially one that comes with the threat of retaliation from the Obama administration for failure to comply,” Jordan said.
Obama aides contend the directive is meant to clear up confusion and help schools figure out how to handle the need. The letter comes in response to a request from school principals seeking legal and practical guidance, said White House press secretary Josh Earnest.
Wichita school district officials said they would not be able to talk about the directive until they can review it. But a short statement also said, “We want all of our students to feel safe at school and we work with transgender students and their families to make sure they have a safe learning environment.”
A bill requiring students to use the restroom that corresponds with their gender at birth failed to gain traction in the Kansas Legislature this year.
Sen. Mary Pilcher-Cook, R-Shawnee, one of its main proponents, called the Obama administration’s directive “a blatant abuse of power and a danger to young girls and women.”
An easy solution would be to make accommodations for those who request them.
Sen. Mary Pilcher-Cook, R-Shawnee
“An easy solution would be to make accommodations for those who request them, but for the Obama administration instead to throw everyone else’s privacy and safety under the bus by allowing biological men to have unrestricted access to women’s bathrooms, showers and locker rooms is outrageous and despicable,” Pilcher-Cook said in an e-mail.
Tom Witt, executive director of Equality Kansas, the state’s leading LGBT rights organization, dismissed Pilcher-Cook’s comments.
“President Obama believes LGBT people should be treated like equal and full members of society. Mary Pilcher-Cook obviously believes differently.”
Gov. Sam Brownback’s office did not comment on the directive, which comes as the Kansas Department of Health and Environment is pursuing a regulatory change to stop transgender Kansans from updating the gender on their birth certificates after surgery.
Contributing: Christi Parsons of the Tribune Washington Bureau, Eric Tucker of the Associated Press and Bryan Lowry and Suzanne Perez Tobias of The Eagle