May 12, 2016 at 11:25 pm EDT | by Chris Johnson
Obama administration assures bathroom access for trans students
Gavin Grimm, Title IX, gay news, Washington Blade

Gavin Grimm is a transgender student who sued his Virginia school to use the restroom consistent with his gender identity. (Photo courtesy of Gavin Grimm)

The Obama administration is set to issue Friday sweeping guidance clarifying public schools are required to treat transgender students consistent with their gender identity, including for the purpose of bathroom use.

First reported by The New York Times, the guidance spells out that treatment of transgender students contrary to their gender identity constitutes a violation of Title IX of the Education Amendments of 1972, which could result in a loss of federal funds for schools.

The nine-page joint guidance comes from the Departments of Education and Justice and is signed by Catherine Lhamon, assistant secretary of education for civil rights, and Vanita Gupta, principal deputy assistant attorney general for civil rights.

“The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” the guidance says. “This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.”

The Obama administration issues the guidance at a time when bills are pending before state legislatures that would prohibit transgender students from using school restrooms consistent with their gender identity. The controversial anti-LGBT law in North Carolina includes a components requiring transgender students to use the restroom in schools consistent with their birth certificates and not their gender identity, even though many transgender people are unable to get gender marker changed on that document.

Under a heading marked “sex-segregated activities and facilities,” the guidance specifically spells out transgender students must be able to use school restrooms consistent with their gender identity.

“A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity,” the guidance says. “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. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.”

Education Secretary John King said in a statement the guidance is the educators seeking clarification from the Obama administration on application of Title IX for transgender students.

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” King said. “This guidance further clarifies what we’ve said repeatedly – that gender identity is protected under Title IX. Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law. 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.”

U.S. Attorney General Loretta Lynch, who on Monday filed a lawsuit against North Carolina’s House Bill 2, said in a statement the Obama administration won’t tolerate anti-trans discrimination.

“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” Lynch said. “This guidance gives administrators, teachers, and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.”

The administration has indicated transgender students must be treated consistent with their gender identity in public schools in document on related topics and even assisted in litigation against schools discriminating against transgender students, including in restrooms use, but has never before issued guidance for the singular, explicit purpose of saying discrimination against transgender students constitutes a violation of Title IX.

Among those calling for the new guidance was a group of 40 Senate Democrats led by Sens. Tammy Baldwin (D-Wis.) and Al Franken (D-Minn.) who sought the clarification in a letter earlier this month to the Department of Education.

Mara Keisling, executive director for the National Center for Transgender Equality, said she’s “thrilled” the Obama administration has “finally taken action to protect transgender students all over the nation.”

“Policies that treat transgender students equally, including when it comes to restroom access, have been successfully tried and tested for years in thousands of schools around the country,” Keisling said. “But even though many schools have been doing the right thing without any threats to anyone’s privacy or safety, too many transgender students continue to go to schools where they face discrimination, harassment and even violence. The Department of Education’s policy letter will be critical to protect the rights of all transgender students.”

Winnie Stachelberg, executive vice president for external affairs for the Center for American Progress, said in a statement the guidance is a welcome development for transgender students “who face bullying and discrimination every day in schools across the country.”

“On the heels of Attorney General Loretta Lynch’s important and moving statement earlier this week, the departments of Education and Justice have now made clear to transgender students nationwide that mistreatment of any kind will not stand, regardless of whether it is at the hand of a peer, a teacher, or even the student’s own state government,” Stachelberg said. “This guidance not only ensures equal access to a safe and high-quality education for transgender students, it will also undoubtedly help save lives.”

Denouncing the guidance as an overstep of federal authority was Penny Nance, CEO of the anti-LGBT Concerned Women for America.

“The Obama Administration once again overstepped legal boundaries by redefining the scope and reach of the Civil Rights Act of 1964 and slapping the heavy hand of government on local schools,” Nance said. “Whether or not people who identify as transgender are indeed a protected class will get worked out in the courts. Meanwhile, schools all over this nation who have rightly worked on a case by case basis to accommodate kids struggling with gender dysphoria may be forced to violate the privacy of other students and perhaps even create trauma for the very kids Obama pretends to protect.”

In addition to issuing the Title IX guidance, the Department of Education’s Office of Elementary & Secondary Education also released a 25-page document titled “Examples of Policies and Emerging Practices for Supporting Transgender Students,” a compilation of policies and practices that schools across the country are already using to support transgender students. The document answers questions on issues such as school records, privacy, and terminology in addition to explaining how some school districts have addressed them.

The guidance is made public on the same day the White House announced it won’t take federal dollars away from North Carolina at this time over enactment of House Bill 2. An estimated $4.5 billion in Title IX funds for the state’s schools was in jeopardy as result of the anti-LGBT law. An Education Department spokesperson said Thursday the department’s review of the law is ongoing.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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