Obama administration to issue decree on transgender access to school restrooms

In the middle of a legal fight with North Carolina over transgender rights, the Obama administration is planning to issue a sweeping decree telling every public school district in the country to allow transgender students to use the bathrooms that match their gender identity.

The letter to school districts that will go out Friday describing what they should do to ensure that none of their students are discriminated against, signed by officials of the departments of Justice and Education, 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 has made bathrooms its latest battleground.

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” Education Secretary John King 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.

“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 already 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.

The White House has called North Carolina’s law “meanspirited.”

This story was originally published May 12, 2016 at 9:38 PM with the headline "Obama administration to issue decree on transgender access to school restrooms."