Obama Administration Give Schools Guidance on Transgender Bathrooms on Friday

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The Obama administration is issuing guidance on Friday to schools throughout the country, 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 Dept. 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 that says people have to use the bathroom that corresponds to the sex on their birth certificate.

Attorney General Loretta Lynch — a North Carolina native — said that was discriminatory, and she spoke directly to transgender people saying, “We see you, we stand with you, and we will do everything we can to protect you going forward.”

The administration now 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. 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 going 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 is 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. And here the administration’s guidance is very clear: A school must allow transgender students to use the bathroom consistent with their gender identity. And 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 it’s sending out, the Dept. 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.

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