Allison Ross

Louisville Courier Journal

All last school year, Max St. John, then a senior at Doss High School, had to rush through the hallways to get to the teachers' lounge bathroom during breaks.

St. John, a transgender student, said he was told he couldn't use the student boys' restroom, but the school allowed him to use the private bathroom in the teachers' lounge.

Now, Doss and other high schools around the state and country may have to rethink their bathroom and locker room facilities policies for transgender students in light of new guidance from the Obama administration.

Saying that there's been a "growing chorus" of educators, parents and students looking for guidance on how not to run afoul of federal civil rights laws, the U.S. Department of Education and the U.S. Department of Justice issued joint guidance Friday about schools' obligations to transgender students when it comes to not discriminating against them on the basis of sex.

The guidance makes clear that the two agencies see a student's gender identity as the student's sex for purposes of enforcing Title IX, which requires that schools receiving federal money not discriminate based on sex.

It specifically notes that schools may not require students to use facilities inconsistent with their gender identity. It also says that schools may not require transgender students to use individual restrooms or locker rooms if other students are not required to do so. But, schools can offer individual restrooms for all students.

Q&A: What does the Department of Education say about transgender bathrooms?

"No student should ever have to go through the experience of feeling unwelcome at school or on a college campus," U.S. Secretary of Education John B. King Jr. said in a statement.

St. John, who is now in college, applauded the guidance issued Friday, saying he's glad to see federal oversight on an issue where there is so much disagreement.

"I'm happy the government is doing their job and protecting people like me and protecting people in worse situations," St. John said, noting that he didn't like having to use the teachers' lounge bathroom, in part because it was far from his classes and because it made him stand out as different. He said it also caused friction with some of the teachers.

Jefferson County Public Schools spokeswoman Jennifer Brislin said Friday that JCPS is reviewing the communication from the U.S. Departments of Education and Justice and "will be working with the board to determine how we move forward as a district."

Kentucky Gov. Matt Bevin on Friday released a statement calling the guidance an "absurd federal overreach into a local issue."

"The federal government has no authority to interfere in local school districts' bathroom policies," Bevin said in a statement. "The president is not promoting unity. In fact, he is doing quite the opposite. He is intentionally dividing America by threatening to sue or withhold funding from our cash-strapped public schools if they do not agree with his personal opinion on policies that remain squarely in their jurisdiction."

Bevin said his administration is "researching the options available" to ensure the issue of what bathrooms transgender students can use remains a local issue.

Top Republican leaders in the General Assembly also harshly criticized the decision.

"Kentucky's schools should be regulated on a local level and not have the policies of Washington liberals forced upon them," said House Republican Leader Jeff Hoover, of Jamestown. "If this directive stands, I will consider every measure to ensure it is challenged in Kentucky."

Senate President Robert Stivers, a Manchester Republican, said, "This is yet another example of indefensible overreach by President Obama, illustrating just how out of touch his administration has been with the values of Kentucky. ... This should be a local issue and I am prepared to fight for the safety of our students in Kentucky."

The Jefferson County Board of Education last August approved expanding JCPS policies to specifically protect students and employees regardless of gender expression and gender identity.

JCPS had already named several other individual characteristics in its nondiscrimination and anti-harassment policies, including age, race, gender, sexual orientation, religion, veteran status and disability; it voted to add gender expression and gender identity on a 6-1 vote.

However, those policy changes did not specifically address things such as what bathroom facilities that JCPS transgender students and employees are allowed to use.

A spokesman for New Albany-Floyd County Schools said the letter issued Friday is similar to the position the federal education department has taken over the past couple years. He said the guidance won't mean anything new for the district, which added protections for transgender students to its student rights and responsibilities document earlier this week.

At least one JCPS school has been somewhat ahead of the curve in addressing the question of facilities for transgender students.

In 2014, Atherton High School made national news when the school approved a nondiscrimination policy that included barring discrimination based on gender identity. Some parents appealed the policy, with much of the concern centered around whether transgender students could use the bathroom and locker room facilities of their gender identity.

Atherton’s policy was upheld on appeal.

Atherton principal Thomas Aberli said Friday's guidance from the federal government validated the process that his school had gone through two years ago.

He said that, since the last appeal was upheld, Atherton's nondiscrimination policy has been a "non-issue" at the school. He said that there are several transgender students at his school who either transitioned before or during their time at Atherton.

"It probably has been an attractive aspect to our school that students feel safe and that we value the diversity in our school and see it as a strength rather than divisive," Aberli said. He added, "We find our policy is just the right way to treat a person and that's how we treat all students in our school."

But he also acknowledged that understanding transgender students and gender identity can be an uncomfortable mindset shift for some.

He said he has been contacted by principals and superintendents across the country "asking about our thought process, what evidence we used and how we came to the conclusion" of allowing students to use the facilities of their gender identity.

"This is definitely a paradigm shift in the traditional view of gender norms in our society," Aberli said. "It can be unsettling or uncomfortable, but as leaders we must do our research in understanding what gender identity is, and understand what it means for accommodation versus discrimination."

Kirsten Clark contributed reporting. Reporter Allison Ross can be reached at (502) 582-4241. Follow the Courier-Journal's education team at Facebook.com/SchooledCJ.