The U.S. Justice Department and Department of Education, based on pressing from President Obama and his administration, released a joint letter online to school systems around the nation, not-so-subtly telling them they better open their restroom facilities to both genders, else face the wrath of the federal government.
“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” said Attorney General Loretta Lynch, in a written statement entitled “U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students” posted Friday.
She added: “I look forward to continuing our work with the Department of Education – and with schools across the country – to create classroom environments that are safe, nurturing and inclusive for all of our young people.”
The guidance, which does not carry the weight of law, nonetheless makes clear that schools that receive federal funding cannot discriminate against transgender students based on Title IX of the Education Amendments of 1972. Feds, under that umbrella, are lumping transgenders in with that amendment’s prohibition against discrimination based on sex.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” said U.S. Education Secretary John King Jr. “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.”
The principal deputy assistant attorney general, Vanita Gupta, weighed in as well, speaking of the importance of all students having equal access to “safe, supportive” educational environments.
“Every child deserves [such] that allows them to thrive and grow,” Gupta said. “And we know that teachers and administrators care deeply about all of their students and want them to succeed. … Our guidance sends a clear message to transgender students across the country: here in America, you are safe, you are protected and you belong – just as you are. We look forward to working with school officials to make the promise of equal opportunity a reality for all of our children.”
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And one more comment, from the assistant secretary for the civil rights division at the Department of Education, Catherine Lhamon, that drew in Congress and nearly dared legislators to challenge the executive branch guidance.
“Our federal civil rights law guarantees all students, including transgender students, the opportunity to participate equally in school programs and activities without sex discrimination as a core civil right,” she said. “We look forward to continuing to work with schools and school communities to satisfy Congress’ promise of equality for all.”
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Transgender-rights activists cheered the move.
“This is the boldest stance the federal government could take to support transgender students,” said National Center for Lesbian Rights Transgender Youth Project staff attorney Asaf Orr. “This guidance could not be clearer: Schools must treat transgender students with dignity and respect, providing them equal opportunities to succeed and thrive as they would any other student. We applaud this historic step, which sends the strongest possible message to transgender students and their families that they are valuable, equal, and welcome members of our national community. We look forward to working with the federal government and others to ensure this guidance is being implemented in school districts across the United States.”
Under the guidance, school officials would have to regard and treat transgender students by whichever sex they said they most identified with at the time, based only on a notification from parents or guardians that specify the newfound gender “differs from previous representations or records.”
A physicians’ notice is not required; neither is a medical diagnosis to underscore the student’s assumed identity.
The guidance 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.”
It also says schools have to “respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity,” and they have to “treat students consistent with their gender identity even if their school records or identification documents indicate a different sex.” Schools are also required to let students “participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity” and “protect students’ privacy related to their transgender status under Title IX.”
The issuance of the formal guidance comes just a few days after Lynch, in announcing a lawsuit against North Carolina for that state’s passage of a law requiring transgenders to use the bathrooms that correspond to their sex at birth, drew parallels between America’s Jim Crow era – when blacks were forcibly segregated from “whites only” facilities – and transgender equality.
“Instead of turning away from our neighbors, friends and colleagues,” she said, during a news conference earlier in the week, “let us instead learn from our history and avoid repeating the mistakes of our past. Let us reflect on the obvious but neglected lesson that state-sanctioned discrimination never looks good and never works in hindsight.”