| New York Times | - |
Signs
outside a restroom at Santee High School in Los Angeles. Credit Mark
Ralston/Agence France-Presse - Getty Images. WASHINGTON - The Obama
administration is planning to issue a sweeping directive telling every
public school district in the ...
WASHINGTON
— The Obama administration is planning to issue a sweeping directive
telling every public school district in the country to allow transgender
students to use the bathrooms that match their gender identity.
A
letter to school districts will go out Friday, adding to a highly
charged debate over transgender rights in the middle of the
administration’s legal fight with North Carolina over the issue. The
declaration — signed by Justice and Education department officials —
will describe what schools should do to ensure that none of their
students is discriminated against.
It
does not have the force of law, but it contains an implicit threat:
Schools that do not abide by the Obama administration’s interpretation
of the law could face lawsuits or a loss of federal aid.
The
move is certain to draw fresh criticism, particularly from Republicans,
that the federal government is wading into local matters and imposing
its own values on communities across the country that may not agree. It
represents the latest example of the Obama administration using a
combination of policies, lawsuits and public statements to change the
civil rights landscape for gays, lesbians, bisexual and transgender
people.
After
supporting the rights of gay people to marry, allowing them to serve
openly in the military and prohibiting federal contractors from
discriminating against them, the administration is wading into the
battle over bathrooms and siding with transgender people.
“No
student should ever have to go through the experience of feeling
unwelcome at school or on a college campus,” John B. King Jr., the
secretary of the Department of Education,
said in a statement. “We must ensure that our young people know that
whoever they are or wherever they come from, they have the opportunity
to get a great education in an environment free from discrimination,
harassment and violence.”
Courts
have not settled the question of whether the nation’s sex
discrimination laws apply in matters of gender identity. But
administration officials, emboldened by a federal appeals court ruling in Virginia last month, think they have the upper hand. This week, the Justice Department and North Carolina sued each other
over a state law that restricts access to bathrooms, locker rooms and
changing rooms. The letter to school districts had been in the works for
months, Justice Department officials said.
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“A
school may not require transgender students to use facilities
inconsistent with their gender identity or to use individual-user
facilities when other students are not required to do so,” according to
the letter, a copy of which was provided to The New York Times.
A
school’s obligation under federal law “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,” the letter states. “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.”
As
soon as a child’s parent or legal guardian asserts a gender identity
for the student that “differs from previous representations or records,”
the letter says, the child is to be treated accordingly — without any
requirement for a medical diagnosis or birth certificate to be produced.
It says that schools may — but are not required to — provide other
restroom and locker room options to students who seek “additional
privacy” for whatever reason.
Attached
to the letter, the Obama administration will include a 25-page document
describing “emerging practices” that are in place in many schools
around the country. Those included installing privacy curtains or
allowing students to change in bathroom stalls.
In
a blog post accompanying the letter, senior officials at the Justice
and Education Departments said they issued it in response to a growing
chorus of inquiries from educators, parents and students across the
country, including from the National Association of Secondary School
Principals, to clarify their obligations and “best practices” for the
treatment of transgender students.
“Schools
want to do right by all of their students and have looked to us to
provide clarity on steps they can take to ensure that every student is
comfortable at their school, is in an environment free of
discrimination, and has an opportunity to thrive,” wrote Catherine E.
Lhamon, the assistant secretary of education for civil rights, and
Vanita Gupta, the head of the Justice Department’s Civil Rights
Division.
Thomas
Aberli, a high school principal in Louisville, Ky., said the new
guidance would help administrators across the country who are trying to
determine the best way to establish safe and inclusive schools. He said
his school had little to work with when it drafted a policy that was put
in place last year.
“What
you don’t do is go and tell a kid, ‘You know, there is something so
freakishly different about you that you make other people uncomfortable,
so we’re going to make you do something different’,” said Mr. Aberli,
who estimated that his school of 1,350 students had about six
transgender children. “There’s been no incident since its
implementation. It’s really just a nonissue in our school.”
The
White House has called North Carolina’s law “meanspirited” and said
this week that federal agencies were continuing a review of their
policies on the treatment of transgender people while the administration
waged its legal battle with the state.
President Obama condemned the law last month, saying it was partly the result of politics and “emotions” that people had on the issue.
“When
it comes to respecting the equal rights of all people, regardless of
sexual orientation, whether they’re transgender or gay or lesbian,
although I respect their different viewpoints, I think it’s very
important for us not to send signals that anybody is treated
differently,” Mr. Obama said at a news conference in London.
The
struggle over the rights of transgender people has reverberated on the
presidential campaign trail and become a defining issue in the final
year of Mr. Obama’s tenure, prompting boycotts of North Carolina by some
celebrities and businesses that had planned to create jobs there. The
fresh guidance to be issued Friday seemed certain to intensify that
debate, and showed that Mr. Obama and his administration intend to press
the issue of transgender rights aggressively as the legal challenge
unfolds.
The
Justice Department has for years made gay and transgender issues
centerpieces of its civil rights agenda. Former Attorney General Eric H.
Holder Jr. described that campaign as a continuation of the civil
rights era that brought equal rights to African-Americans. And this
week, Attorney General Loretta E. Lynch spoke passionately to
transgender people as she cast the lawsuit against North Carolina in
historic terms.
“We
stand with you,” she said. “And we will do everything we can to protect
you going forward. Please know that history is on your side.”
Some
Republicans have defended North Carolina’s law by arguing that it would
be inappropriate to allow transgender women to use the same bathroom as
young girls. Before ending his presidential bid last week, Senator Ted
Cruz of Texas charged that Donald J. Trump, the presumptive Republican
nominee, and Hillary Clinton, the likely Democratic nominee, “both agree
that grown men should be allowed to use the little girls’ restroom.”
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