White House Sends Schools Guidance On Transgender Access To Bathrooms

Enlarge this image Toby Talbot/AP Toby Talbot/AP

The Obama administration issued guidance to schools Friday, 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 Department 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, which says people must use the bathroom that corresponds to the sex on their birth certificates.

Attorney General Loretta Lynch — a North Carolina native — called the law discriminatory. "We see you, we stand with you," she said, speaking directly to transgender people, "and we will do everything we can to protect you going forward."

The administration now has extended 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 sent 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 was 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. Here the administration's guidance is very clear: A school must allow transgender students to use the bathroom consistent with their gender identity. 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, the Department 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.

Updated at 12 p.m. ET:

At a press conference, Texas Lt. Gov. Dan Patrick — who spoke out Tuesday to call for the resignation of a Texas superintendent who issued guidelines meant to support transgender students — responded to the administration's announcement.

He called the guidelines for accommodating trans students "the biggest issue facing families and schools in America since prayer was taken out of public schools."

"[Obama] says he is going to withhold funding if schools do not follow the policy. Well, in Texas he can keep his 30 pieces of silver. We will not yield to blackmail from the president of the United States," Patrick said. He went on to suggest that if the administration did withhold funds, low-income students who rely on free breakfasts and lunches would be the most affected.

He also said that opposition to the guidelines "has nothing to do with anyone being against a transgender child or a gay child. This has everything to do with keeping the federal government out of local issues."