What Does Obama’s Transgender Directive Mean for Schools?

On Friday, May 13, the Obama administration issued a directive that clarifies for state governments how and why sex discrimination protections apply in schools. But what does this mean for trans rights? Can we expect a pushback from trans rights-hostile state leadership?

The issue: Federal law and sex discrimination against trans students

Signed in 1972, Title IX is a federal law that prevents discrimination on the grounds of sex in any federally funded education program or activity. With few exemptions, this means that any violation of that law could be grounds for a school or university to lose its federal funding.

For a number of years now, the Obama administration has supported a trans-inclusive interpretation of Title IX, as well as the sex protections contained in Title VII of the Civil Rights Act. The administration argues that as gender expectations are tied to sex, Congress de facto acted to prevent discrimination against trans people when it passed these protections — even if trans people were not explicitly mentioned at the time.

Despite this argument, a number of schools continue to discriminate against trans students. At least one federal appeals court has backed the Obama administration and Department of Education in interpreting the law in this manner, but states like North Carolina, Texas and Mississippi –among several others — have authored laws to curtail trans bathroom access.

With this directive, the Obama administration and the Department of Education seem to draw a line in the sand.

What does the trans education directive say?

The major statement in this directive makes absolutely clear that schools cannot treat trans students differently based on their gender identity. Thus, they cannot be prevented from accessing restrooms and facilities that accord with their consistent sense of gender.

The directive states:

As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations. The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. 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 directive goes on to lay out a process for schools to follow. It states that upon being notified by a parent or guardian that a student wishes to assert his or her gender identity, the school must then begin treating the child in accordance with that identity. No medical diagnosis of gender dysphoria is necessary, and the trans student does not need to undergo any gender affirmation treatment.

In a direct blow to North Carolina’s anti-trans HB2, the guidance also specifically states that requiring birth certificates to prove gender “may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.”

Essentially, the directive restates what has been the Obama administration’s interpretation of the law for years now. This time, however, the Department of Education gives absolutely clear notice: any state that passes anti-trans student bills faces a potential loss of federal school funding.

The guidance also states that schools must provide a safe and non-discriminatory environment for students. Schools can provide sex-segregated bathrooms and changing rooms but cannot force trans students to use facilities inconsistent with their gender. Single-use stalls may be provided for all students who seek additional privacy.

The directive continues to support gender divisions in school athletics. However, it emphasizes that schools should not try to apply overly broad generalizations about gender. And while the guidance concedes that such divisions are appropriate to ensure fairness in a sporting environment, schools cannot use a student’s trans identity as grounds for disqualification from sports teams. This leaves schools room to address specific concerns and seek appropriate remedies, while still protecting access for trans students.

Hostile reaction to Obama’s trans rights schools directive

LGBT rights advocates have hailed the directive as an important affirmation of trans rights and student rights as a whole. However, hostile reactions from the religious right and aligned state administrations have been swift and uncompromising.

Perhaps most vocal has been Lt. Gov. Dan Patrick of Texas. Declaring “We will not be blackmailed,” Patrick said in a press conference that schools should not follow the guidance. He added: ”This will be the end of public education, if this prevails. People will pull their kids out, homeschooling will explode, private schools will increase.”

Meanwhile, North Carolina’s Lieutenant Governor Dan Forest released a statement stating:

North Carolina will not stand by and let our locker rooms and high school showers be used for social experimentation at the expense of the privacy and protection of our young boys and girls. I do not think it is appropriate for teenage boys and girls to share the same bathroom. I don’t think it appropriate for teenage boys and girls to shower next to each other. I don’t think it is appropriate for male coaches and male teachers to have access to girls’ locker rooms and showers while the young girls are naked and exposed. I feel confident, the vast majority of North Carolina parents feel the same.

Forest also incorrectly claimed the guidance to be a “non-binding directive.”

Clearly, trans-hostile states are gearing up to fight the Obama administration on its interpretation of federal law. The administration has proved before that it does not shy away from these conflicts, so we can expect more lawsuits on the horizon. Meanwhile, this directive will give schools an important piece of of guidance on their responsibilities to trans students.

Photo credit: Thinkstock.

74 comments

Jerome S
Jerome S11 months ago

thanks

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Jerome S
Jerome S11 months ago

thanks

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Jim Ven
Jim Ven11 months ago

thanks for sharing

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Jim Ven
Jim Ven11 months ago

thanks for sharing

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Sarah Hill
Sarah Hill2 years ago

This is going to end up causing more trouble and confusion!

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william Miller
william Miller2 years ago

thanks

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Siyus Copetallus
Siyus Copetallus2 years ago

Thank you for sharing.

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Marie W.
Marie W2 years ago

OMG- what happened to having bathrooms with doors and locks?

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Crystal G.
Crystal G2 years ago

I'm not too worried about trans-acting pervert schoolkids going into a girl's bathroom. I remember those girls and they'll kick the ass of any trouble.

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Danuta Watola
Danuta W2 years ago

Thanks for sharing

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