U.S. Tells Public Schools to Give Transgender Students Bathroom Access

New guidance suggests possible financial fallout for noncompliance

Unisex signs outside bathrooms in Durham, North Carolina. On Friday, the Justice and Education departments issued guidance to public schools on bathroom access for transgender students. (Sara D. Davis/Getty Images)
Unisex signs outside bathrooms in Durham, North Carolina. On Friday, the Justice and Education departments issued guidance to public schools on bathroom access for transgender students. (Sara D. Davis/Getty Images)
Posted May 13, 2016 at 11:27am

The Obama administration told public schools on Friday to allow transgender students to use bathrooms consistent with their gender identity, sparking Republican lawmakers to protest what they called federal overreach into an issue best decided by states and school districts.

The Justice and Education departments issued 


 on schools’ obligations under Title IX of the Education Amendments of 1972 as they relate to transgender students and restroom use, participation in athletics, single-sex classes, and housing and overnight accommodations.

The federal action doesn’t impose any new legal requirements. But it implies a possible financial fallout for schools — losing federal education funds — if they run afoul of Title IX.

Republican lawmakers, including House Education and the Workforce Chairman 
John Kline of Minnesota,
 said removing funding would be detrimental to low-income students, the target of a large portion of federal support. 

“The secretary has no business — and certainly no legal authority — denying low-income students the financial support they deserve because their school or institution doesn’t bend to the president’s personal agenda,” Kline said in a statement. 

The  guidance comes amid a legal fight between the Justice Department and North Carolina over a controversial state law restricting the restroom use of transgender people. The Justice Department says House Bill 2, which took effect March 23, discriminates against transgender people by requiring them to use the restroom assigned to their biological sex, regardless of gender identity or transgender status.

[Related: In North Carolina, LGBT Bill Is Political and Personal]

Questions have arisen from school districts, colleges and universities about transgender students, the Justice Department said. The guidance defines basic terminology when it comes to transgender issues, describing how gender identity is an individual internal sense of gender that can be different from the person’s sex assigned at birth.

“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 written statement. “This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.”

[Related: What N.C.’s Pat McCrory Is Ignoring While He Focuses on Bathrooms]

Sen. Lamar Alexander, the chairman of the Health, Education, Labor and Pensions Committee, said the Obama administration lacks authority to issue the directive, adding that such choices should be made at the local level. 

“This is the kind of issue that parents, schools boards, communities, students and teachers should be allowed to work out in a practical way with a maximum amount of respect for the individual rights of all students,” said Alexander, who served as Education secretary in the administration of President George H.W. Bush. “Insofar as the federal government goes, it’s up to Congress to write the law, not the executive departments. And guidance issued by the departments does not amount to federal law and should not be treated as such.”

Roger Severino, the director of the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation, called on states to follow the example of North Carolina in using the courts to challenge the Obama administration. He said the guidance is not only “radical overreach,” but is outside the scope of Title IX. 

“Congress gave the [Education Department] executive authority to eliminate sex discrimination in education. Gender identity was not a part of the deal when Congress gave that authority in 1972,” he said. “Sex and gender identity are distinct concepts.” 

But that wasn’t the conclusion implied by the 1988 Supreme Court case, Price Waterhouse v. Hopkins, which found gender stereotyping is a form of sex discrimination, said Robin Wilson, a professor at the University of Illinois College of Law. While gender stereotyping and gender identify are different, Wilson said there’s enough of a connection for the Education Department to make its case.

“You can say you’re discriminating against this kid because they’re transgender,” she said. “But they’re presenting in a way that you’re not expecting them to present given their identity at birth. That strikes me as sex stereotyping.”

Contact Ruger at toddruger@cqrollcall.com and follow him on Twitter

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