The divisive and politically combustible issue of bathroom access for transgender individuals is about to become further inflamed, as the Obama administration is expected in coming weeks to aggressively reinforce its position that transgender student rights are fully protected under federal law, sources told Politico.

With the Justice Department already locking horns with North Carolina over the state’s so-called bathroom bill, the administration plans to reaffirm its view that robust protections for transgender students are within the existing scope of Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs and activities. Multiple agencies are expected to be involved.


It’s a step LGBT advocates have wanted the federal government to take for years. The legal protections include providing transgender students not just access to bathrooms and locker rooms that align with their gender identity but also affording them protections from bullying, harassment and sexual violence, and a right to privacy concerning their transgender status and transition.

The building political war over transgender rights has drawn vehement protest from the right and exposed and exacerbated simmering tensions within the Republican Party — and proved to be an effective issue for Democrats to use to mobilize their base.

But a bigger legal battle could be looming.

The confrontation in North Carolina over the White House’s disputed interpretation of Title IX of the Education Amendments of 1972 centers on a state law — passed by a Republican-controlled Legislature in a single-day special session — that requires transgender individuals to use a restroom corresponding with the gender listed on their birth certificate. The expected guidance will only increase the likelihood that Title IX is headed for a major legal battle — and possibly a case argued before the Supreme Court — to settle a patchwork of conflicting interpretations and challenges across lower courts and at every level of government.

“It’s important to recognize that there’s a lagging legal framework in the face of rapidly changing social norms,” said National School Boards Association general counsel Francisco Negrón. “Our understanding of gender identity is changing, and the law hasn’t kept up.”

“Certainly that’s the case here with Title IX,” he added. “The lack of specificity about gender identity in the law creates all kinds of room for folks on both sides of this issue to make arguments about how the law should be taken.”

Advocates and legal experts say that Title IX’s lack of clarity could become wrapped up with a host of other legal issues, such as the constitutional right to privacy and varying policies at every level of government, and result in transgender rights landing in some form before the nation’s highest court — as in the lead-up to the Supreme Court’s historic gay marriage verdict.

New guidance on Title IX represents a natural outgrowth of the administration’s aggressive agenda on gender equity and civil rights. In April 2014, guidance issued by the Education Department on sexual violence explicitly mentioned that transgender students are protected under Title IX. LGBT advocates saw it as an important moment for the transgender community but have wanted the administration to go even further in clarifying the law.

Additional guidance will likely raise the ire of many Republicans in Congress, however. Some lawmakers, like Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.), have already slammed the administration for federal overreach. Alexander has accused the Education Department of circumventing Congress, regulating the law through what should be nonbinding guidance and forcing colleges and universities to make changes, particularly when it comes to issues of sexual assault and harassment under Title IX. The administration has maintained that its previous guidance does not mandate anything, but instead clarifies existing federal law.

The Education Department sent a letter in March to Sen. James Lankford (R-Okla.), who has also demanded answers, stressing that the agency will make it clear that “guidance documents do not create or impose new legal requirements, but rather provide information such as our interpretation of applicable laws and regulations, policy statements and clarifications, and examples of best practices.”

The guidance would come on the heels of the Justice Department taking its strongest enforcement action to affirm transgender rights to date, warning North Carolina last week that its so-called House Bill 2 violates federal civil rights laws. DOJ also sent a letter to the University of North Carolina board of governors and UNC system President Margaret Spellings, arguing that the university’s enforcement of the law would violate Title IX and Title VII of the Civil Rights Act, which prohibit employers from discriminating in the workplace, and the Violence Against Women Act. The Obama administration has given the state and the UNC system until Monday to assure it they will comply.

The Education Department declined to comment last week, and the Justice Department could not be reached for comment. North Carolina now faces additional threats to its federal funding from two other government agencies, the departments of Transportation and Housing and Urban Development, The Raleigh News & Observer reported Friday.

In its letter to the UNC system, the Justice Department says Title IX allows schools to provide sex-segregated restrooms, locker rooms and accommodations. But “when a school elects to separate or treat students differently on the basis of sex in those situations, a school must generally treat transgender students consistent with their gender identity. … Barring a student from the restrooms that correspond to his or her gender identity because the student is transgender constitutes unlawful sex discrimination in violation of Title IX.”

State lawmakers have said they won’t be pressured into meeting a deadline, while a spokesman for Republican Gov. Pat McCrory said the state would meet it — though it remains unclear what that response would be. Joni Worthington, a spokeswoman for the UNC system, told Politico that system leaders would respond by the deadline. The state stands to lose almost $2 billion in federal education dollars and could face a lawsuit from the federal government.

“This is the new frontier of what we’re going to be dealing with for the next few years,” said Nathan Smith, director of public policy for the Gay, Lesbian & Straight Education Network. The hodgepodge of policies, legislation affecting states and school districts, and lawsuits snaking through courts, will take a long time to play out, he said.

The Human Rights Campaign said in February that it has seen a significant uptick in “anti-LGBT” or “anti-transgender” bills nationwide in recent years. About 125 bills were introduced in 2015 that affected both children and adults, the group said. That number has grown to at least 175 this year, nearly two dozen of which are “anti-transgender” bills that would affect children, focusing on access to public school facilities, including locker rooms and bathrooms, or a transgender student’s ability to play sports.

Smith said legislative sessions in most of the states GLSEN has been watching have ended for the year. For example, a bathroom bill in Tennessee has been tabled until next year.

Lower courts have been divided on the issue. A federal district court last year ruled against Gavin Grimm, a transgender male student in Virginia whose attorneys argued that it was his right under Title IX to use the boys bathroom at his high school. A federal appeals court overturned that district court’s ruling earlier this year, representing a major legal victory for Grimm and LGBT advocates. The school board is appealing the ruling.

While the appellate court’s decision was a victory, it didn’t explicitly say that the Obama administration’s interpretation of Title IX is correct. The two-judge majority came close, however, saying the lower court should have deferred to the administration’s guidance on the issue.

If other federal appellate courts show they’re divided, it will likely catch the Supreme Court’s attention, said David Cohen, a law professor at Drexel University.

In Illinois last week, the Alliance Defending Freedom, a Christian nonprofit, filed a lawsuit in U.S. District Court for the Northern District of Illinois, accusing the Obama administration and Township High School District 211 in Palatine, Illinois, of disregarding student privacy and safety.

ADF, which operates on a $40 million annual budget and relies on private donors whose identities it doesn’t disclose, offers schools, districts and states model policy on the issue. Staff attorneys have also testified before state legislatures on a number of bills.

The conservative group has argued in letters that federal law allows schools to have sex-specific restrooms, showers and changing areas, and schools have “broad discretion” in regulating their use. While transgender students can use private changing areas, allowing them “to access facilities dedicated to the opposite sex violates the fundamental rights of the vast majority of students and parents.”

ADF senior counsel Jeremy Tedesco told Politico earlier this year that more bills are cropping up in states across the country and more cases are landing in court, “because of the attempt to overthrow the way we regulate this in civil society.”

The Education Department reached an agreement with the Illinois school district in December that allowed a transgender student who identifies as female to use a private changing space in the girl’s locker room, at her request. But ADF alleges in the suit, which was filed on behalf of dozens of parents, that the agreement “creates an intimidating and hostile environment” for other girls.

Although the district reached an agreement with federal officials, LGBT advocates still saw Palatine school officials as openly hostile and discriminatory. The agreement to allow one student to use a private changing area applies only to that student, school district officials said, and transgender students still wouldn’t have unfettered access to bathrooms and locker rooms.

Caught in the middle of this litigation and confusion are schools and school districts — and, of course, children. Some states and districts, like the Chicago Public Schools, have passed their own inclusive policies affirming transgender student rights. But many are unsure how to handle the issue, Negrón said.

“School districts and board members are sworn to uphold the laws of their state,” he added. “It’s really kind of an untenable position for school districts. … It’s hard for districts to do their jobs out of fear that they’re going to lose federal funds or get sued by other parties.”

Negrón also said it will likely be an issue for the Supreme Court, since Congress is highly unlikely to amend federal civil rights laws.

Of course, the nation’s highest court could choose to ignore the issue entirely, Cohen said. But if more states pass restrictive legislation in the coming years — as they did with gay marriage — and federal appellate courts split, SCOTUS may decide to take it up.

“With same-sex marriage, it was such a pressing issue, with so many states doing different things,” Cohen said. “We’re not quite there yet, in terms of pressure on the Supreme Court with respect to transgender rights, but it’s very possible we could get there.”

“For all I know, they could take notice of North Carolina’s law,” he added.