The U.S. Departments of Justice and Education released a letter to public schools May 13 claiming federal civil rights laws enable transgender students to use restrooms and other sex-segregated facilities according to their gender identity. The directive, along with an accompanying document, said Title IX protections against discrimination based on biological sex include gender identity.
The release comes as the White House and North Carolina face off in a legal battle over the state’s controversial bathroom law, House Bill 2 (HB 2). The bill requires state buildings and public schools to designate bathrooms and changing facilities for use according to the biological sex indicated on a person’s birth certificate.
The Justice Department claims HB 2 is discriminatory against transgender people, according to a May 4 letter to Gov. Pat McCrory. The governor said the law protects women and children from sexual predators willing to exploit gender identity based bathroom policies.
The federal and state governments have each filed lawsuits, asking courts to clarify Title IX and Title VII civil rights protections.
Despite the unresolved legal battle to determine whether gender identity is covered by protections designated for biological sex, the Obama administration’s letter states it as fact and directs public schools to comply.
“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,” the letter reads. “This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
Title IX allows schools to provide sex-segregated facilities, athletics and other activities, according to the federal agencies, but students must be permitted to participate in ways consistent with the gender identity to which they currently identify.
Schools may also provide single-user restrooms, locker rooms or other accommodations for students wanting additional privacy, but they cannot require transgender students to use those facilities when other students do not have the same requirements.
In a press release, McCrory said the directive “changes generations of gender etiquette and privacy norms which parents, children and employees have expected in the most personal and private settings of their everyday lives.”
A 19-page document accompanied the federal letter, including sample policies and emerging practices from school districts currently employing transgender non-discrimination policies.
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, said in a blog post, “The [federal government] here wishes to use its coercive power not simply to stop mistreatment of people but to rescript the most basic human intuitions about humanity as male and female. … Children, then, become pawns of the state for the state to teach what is ultimately a theological lesson, not a scientific one.
“This, ultimately, won’t work,” he said. “There are good reasons to put boys and girls in different bathrooms and locker rooms and sometimes sports teams, reasons that don’t impugn the dignity of people but uphold it.”
Moore continued, “The move here toward severing self-identity from biological reality will hardly stop at ‘gender.’ … People and neighborhoods and nations and cultures cannot live this way.”