WASHINGTON — The Obama administration will issue guidance Friday instructing public schools across the nation that they must provide transgender students access to facilities — including bathrooms and locker rooms — that match their chosen gender identity.
The letter from two top administration officials — Catherine E. Lhamon, the assistant secretary of education for civil rights, and Vanita Gupta, head of the Justice Department’s Civil Rights Division — effectively puts state and local officials on notice that they could lose federal aid if they confine students to areas or teams based on the gender that matches their birth certificate. It comes just days after the Justice Department and the state of North Carolina filed dueling lawsuits over a new law requiring individuals in that state to use bathrooms based on the gender they were assigned at birth.
Citing Title IX, which prohibits sex discrimination at schools that receive federal funding, the two officials warn the law imposes an “obligation” on schools “to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.”
“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,” reads the letter, which was obtained by The Washington Post.
The move is likely to prompt a backlash from Republican officials across the country, though federal GOP lawmakers have largely refrained from weighing in on the legal tug-of-war between North Carolina and the administration that began last week.
The New York Times first reported the planned guidance Thursday evening.
For the most part, state and local officials have reversed course when faced with the threat of losing federal funds over how they treat transgender students. In 2013, the Education Department reached a settlement with the school district of Arcadia in California, on the grounds that it violated Title IX to require a student who transitioned to being male to change and use the bathroom in the nurse’s office.
In December, the school district in Palatine, Illinois, agreed to allow a transgender girl to use the girls’ locker room after the department threatened to withhold $6 million in federal funds.
Legal challenges on this issue are still winding their way through the courts: last month the U.S. Court of Appeals for the 4th Circuit ruled that a transgender high school student who was born as a female can sue his school board on discrimination grounds because it banned him from the boys’ bathroom.
On Thursday night Gavin Grimm, the transgender student in Virginia who won the right to challenge his school, welcomed the administration’s action.
“I am so happy that with this new guidance, transgender students across the country have a new tool to ensure they are treated with dignity and respect at school,” said Grimm, a client of the American Civil Liberties Union. “This guidance would have made a big difference in my life, and I’m happy that kids will be free to use the bathroom that reflects who they are.”
The 4th Circuit’s ruling, along with the threat of new lawsuits from groups such as the ACLU and the Transgender Law Center, have already influenced other schools across the U.S. Horry County schools in South Carolina recently decided to allow transgender students to use the bathroom that corresponds with their gender identity, citing the ruling in Grimm’s case.
The National Association of Secondary School Principals, which asked the administration to issue comprehensive guidance on how to handle transgender students, said it was glad that the Education Department was “taking a stand” on the issue.
“The principal’s most important role is to create a climate and culture in which each student feels valued,” said Michael Allison, the association’s president. “There are countless reasons we could declare it impractical to address the needs of transgender students. None of those obstacles excuse us from doing the right thing.”
Komensky Elementary School principal Jeremy Majeski, whose school is less than an hour away from Palatine, Ill., said that his district has so far made decisions about how to treat transgender students on a case-by-case basis, in consultation with their parents. But school districts aren’t experts in gender identity, and so they need expert help.
“To be able to lean on people who have done this before, it’s important,”
But Francisco Negron, general counsel for the National School Board Association, said despite the letter, some school officials in states where local laws and rules conflict with the Obama administration’s position remain in an untenable bind.
“I don’t think the position expressed by the department does anything to solve the untenable position that school districts find themselves in when we have to deal with other state laws like H.B. 2 in North Carolina,” he said, referring to the recently passed state law that requires people to use bathrooms that correspond with the sex on their birth certificate.
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