The Obama administration’s instructions to schools on how they must accommodate transgender students prompted a mixed reaction Friday, with some politicians, districts and parents embracing the directive as an important civil rights protection. Others immediately vowed to fight back against what they consider an illegal federal intrusion into local matters that carries a threat of withholding billions of dollars in aid meant to help disadvantaged and disabled children.
The sweeping guidance from the Education and Justice departments details what K-12 schools and colleges that receive federal funding must do in order to comply with Title IX, the federal law prohibiting discrimination on the basis of sex. Among its most controversial provisions is the requirement that schools allow students to use bathrooms and locker rooms that correspond to their gender identity.
The National PTA and the National Education Association, the nation’s largest teachers union, were among those embracing the federal guidance, calling it essential for providing the nation’s millions of students with safe and welcoming schools. Some educators welcomed the guidance simply to be able to explain to their communities what the rules are for their school bathrooms.
But others accused President Obama of overstepping his authority with an unwanted edict that they say forces schools to allow men into girls’ bathrooms and lockerrooms. Texas Lt. Gov. Dan Patrick said Obama had “set a policy in place that will divide the country not along political lines, but along family values and school districts.”
“He says he’s going to withhold funding if schools do not follow the policy,” Patrick said at a Friday press conference. “Well in Texas, he can keep his 30 pieces of silver. We will not yield to blackmail from the president of the United States.”
The Obama administration has long said that schools must allow transgender students to use the bathrooms they choose, but Friday’s guidance cemented and amplified that stance, clearly extending it to the nation’s tens of thousands of schools at a time of national debate about transgender students’ bathroom access.
The federal government has said that it could withhold billions of dollars in funding for K-12 schools and college student financial aid if those schools fail to comply with the new guidance, effectively a punishment for violating sex discrimination laws.
The push for transgender students’ rights has sparked a backlash, with more than a dozen states this year considering legislation to limit bathroom access, and a law passed in North Carolina — which requires students to use bathrooms that match the sex on their birth certificates — that is now the subject of dueling state and federal lawsuits.
The unsettled legal questions have put schools and universities into a position of great uncertainty, vulnerable to lawsuits no matter what policies they choose to adopt.
Francisco Negron, general counsel for the National School Boards Association, said that the new guidance does not resolve the quandary for school officials forced to choose between upholding contradictory state and federal directives.
The mother of a transgender student in North Carolina said her daughter’s school allowed her to use the girl’s restroom without incident — until state lawmakers passed HB 2. Then her daughter was banned from the girl’s room and made to use a teacher’s restroom. “It was very traumatic for her, and a lot of tears were shed,” she said.
Not long afterward, the school reversed itself again, and allowed her daughter to use the girl’s bathroom again. That decision came after the Fourth Circuit Court of Appeals ruled that a transgender teen from Virginia who had been denied access to the boy’s bathroom at his school could continue suing his school board for allegedly violating his civil rights.
“I think they were scared that a parent would be able to sue,” the mother said.
Some educators said that the guidance would give school districts political cover to adopt LGBT-friendly policies sure to draw local objection.
“What initially may happen is more pushback,” said Vanessa Ford, a teacher in D.C. whose transgender daughter attends a public school. “But for states on the fence, for schools on the fence, for principals who really want to support students but haven’t had something like this to rely on — it will make a difference.”
Ford said that the District and its public schools already have strong anti-discrimination policies that include protections for transgender students. Officials at her daughter’s school have been welcoming and inclusive, she said.
But she said that children who live elsewhere have not been so lucky: “What I hear from other parents … is their kids feel criminalized, their kids feel endangered, their kids feel worthless, their kids feel bullied,” she said, adding that it is not only an issue of civil rights for transgender children, but also physical and emotional well-being. “We know the outcomes for transgender kids who are not affirmed. It’s really scary.”
Many schools have accommodated transgender students quietly and without official policies, said Jill Marcellus of the Transgender Law Center, based in Oakland, Calif. But a growing number of schools, districts and even states have adopted policies that comply with the Obama administration’s interpretation of Title IX.
Oregon state officials last week released guidelines saying that students should be able to use bathrooms, names and pronouns that match their gender identity; Chicago, the nation’s third-largest school district, introduced similar guidelines earlier this month.
Bruce Messinger, superintendent for the Boulder Valley School District in Colorado, said the guidance letter might help districts that are struggling to navigate the politically and emotionally charged issue.
Boulder Valley has long had a nondiscrimination policy that covered transgender students and accommodated students on a case-by-case basis. But two years ago, the district decided to go further, creating clearer policies on how to deal with transgender students and developing training for staff and educators.
“Like most school districts, we’re probably on a journey,” Messinger said. “Clearly, this will be helpful.”
The Obama administration also made clear Friday that schools that don’t comply with the guidance risk not only lawsuits but also the loss of federal funding.
Federal dollars comprise a relatively small amount of most school districts’ overall education spending. But those federal dollars must go toward serving the nation’s most vulnerable children: those who are poor, or have a disability, or are learning English as a second language. Federal aid also is essential for college students who wouldn’t otherwise be able to afford tuition without programs such as the Pell grants.
Though the Education Department might threaten pulling funding, it is often loathe to actually do it. “This is a nuclear weapon that you don’t want to use,” said Gary Orfield, a scholar at the Civil Rights Project at the University of California-Los Angeles.
But the Education Department has withheld funds before — especially in situations involving civil rights — most notably from dozens of districts that refused to desegregate in the 1960s. The fact that federal officials have been willing to strip funds before means that school districts know the threat is real and as a result usually comply with federal guidance, Orfield said.
Even so, transgender students’ access to school bathrooms, which federal officials have likened to the struggle against Jim Crow decades ago, is deeply divisive, and it seems inevitable that some districts will buck the Obama administration.
The Alliance Defending Freedom, an Arizona-based organization that has sued the Obama administration over its stance on transgender students’ bathroom access, also has urged states and school districts to adopt policies that require students to use bathrooms according to their biological sex at birth.
Jeremy Tedesco, a lawyer for the organization, called the new guidance a “radical reinterpretation of Title IX” that is “completely lawless” and “puts the privacy of every student in this country at risk.”
GOP lawmakers at every level of government accused the administration of overreaching its authority, using its guidance letter as a tool to effectively create a law that doesn’t exist.
“This is the kind of issue that parents, schools boards, communities, students and teachers should be allowed to work out in a practical way with a maximum amount of respect for the individual rights of all students,” said Sen. Lamar Alexander (R-Tenn.), chairman of the Senate’s education committee.
Rep. John Kline, chairman of the House education committee, echoed that sentiment. The Education Department, Kline said in a statement, “has no business — and certainly no legal authority — denying low-income students the financial support they deserve because their school or institution doesn’t bend to the president’s personal agenda.”