Wyatt Employment Law Report

Obama Administration Issues Guidance to Public Schools Regarding Transgender Access to Restrooms

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By Amanda Warford Edge

diverse classroomOn Friday, May 13th, 2016, the Obama administration issued guidance directing all public schools in the country to allow transgender students to use the bathroom that corresponds with their gender identity. This guidance was issued amidst a court fight between North Carolina and the federal government over North Carolina’s controversial House Bill 2, which bans people from using public bathrooms that do not correspond with their biological sex.

U.S. Secretary of Education John B. King, Jr. said that the guidance comes in response to schools and parents seeking direction on the issue. According to the Obama administration, the guidance ensures that all “transgender students enjoy a supportive and nondiscriminatory school environment.” The guidance also states schools cannot require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate before treating them consistently with their gender identity.

While this guidance does not have the force of law, its message was clear: gender identity is protected under Title IX as far as the present administration is concerned, and public schools that receive funding from the federal government may face the loss of federal funding if the guidance is not followed.

LGBT groups, as well as many liberal politicians and lawmakers, have praised the guidance, calling it a validation of transgender rights and a repudiation of so-called “bathroom bills” like North Carolina’s House Bill 2, which essentially prohibit persons from using public restrooms that do not correspond with their biological sex. Conservatives, by contrast, have slammed the guidance as an overreaching of presidential authority – calling on Congress to address the issue, or pronouncing that the issue is a state matter which should not be addressed by the federal government. Some state departments of education have even been directed to disregard the guidance.

In Kentucky, Governor Matt Bevin has vowed to resist the Obama administration’s directive. In a statement, he said: “It is difficult to imagine a more absurd overreach into a local issue. . . . [The President] is intentionally dividing America by threatening to sue or withhold funding from our cash-strapped public schools if they do not agree with his personal opinion on policies that remain squarely in their jurisdiction.”

In Indiana, Governor Mike Pence has also expressed displeasure with the directive, stating: “[P]olicies regarding the security and privacy of students in our schools should be in the hands of Hoosier parents and local schools, not bureaucrats in Washington, D.C. The federal government has no business getting involved in issues of this nature.”

While it remains to be seen whether school districts will ultimately follow or disregard the Obama administration’s guidance, it is clear the guidance has sparked national debate that will likely extend into the next President’s term and reverberate into the court system. Moreover, the guidance is likely to open a Pandora’s box of related issues – from how colleges may consider gender and gender identity in student housing decisions and assignments to how school administrators will handle preferences for sports teams and locker rooms.

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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