Earlier this week, U.S. Attorney General Loretta Lynch denounced North Carolina’s transphobic bathroom law, which requires individuals to use only the bathroom that corresponds with the gender on their birth certificate. “We stand with you,” she told the country’s transgender community. “And we will do everything we can to protect you going forward. Please know that history is on your side.” Today the Obama administration is beginning to make good on Lynch’s promise by issuing sweeping guidelines to every public school district in the country aimed at protecting transgender students from discrimination.
According to the New York Times, the letter will describe what constitutes discriminatory behavior and how schools can implement practices that make their students feel safe and accepted. It also reportedly outlines how the Obama administration interprets Title IX — a law that forbids government-funded institutions from sex-based discrimination — to include discrimination based on gender identity.
It covers best practices in the case of school functions, housing, athletics, classrooms, graduation ceremonies, and yearbooks, and it also strongly sides with transgender students on the issue of bathrooms and locker rooms, which has become a flashpoint in recent weeks. It’s signed by Justice and Education Department officials, who told the Times it’s been in the works for “months.” And although it’s not legally binding, it carries an implicit threat: if schools discriminate against students, they face the loss of federal funding.
“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 in a statement regarding the letter’s release. “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 Times obtained a copy of the letter, which includes specific passages concerning bathroom use, among other things:
“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.
As the Atlantic points out, the letter is significant not only for its policy suggestions but because it takes the Obama adminisration’s interpretation of Title IX and attempts to apply it nationwide. (The current administration was the first to rule — back in 2013 — that Title IX encompassed transgender people.)
It’s a historic move, and GOP lawmakers are unlikely to let it pass without comment. But the letter — along with the Justice Department’s lawsuit against the state of North Carolina — is yet another indication that Obama is intent on making his mark.