Many states have legislation pending that would make it illegal for transgender people to choose which public bathroom they use based on their gender identity. Credit: The New York Times
Many states have legislation pending that would make it illegal for transgender people to choose which public bathroom they use based on their gender identity. Credit: The New York Times

Politics & Government

Feds to schools: Let transgender students use bathrooms based on identity

By Anita Kumar and Anna Douglas

McClatchy Washington Bureau

May 12, 2016 09:29 PM

UPDATED May 13, 2016 10:54 PM

WASHINGTON

Wading further into a spreading national debate, the Obama administration told all public school districts across the nation Friday morning that they should allow transgender students to use the bathrooms that match their gender identities.

LGBT advocates billed the president’s move as historic though the administration’s letter does not mandate any actions and is considered guidance only for school officials. However, schools that do not abide could face a loss of federal aid, according to federal officials.

The letter does not mention North Carolina specifically but some advocates interpreted the move as a rebuke of the state’s controversial HB2 law – recently enacted to overturn a city ordinance in Charlotte that sought to protect LGBT rights. The federal Justice Department is suing the state, calling HB2 a violation of civil rights.

NC superintendent says schools already follow federal rules

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Federal officials said Friday that they were responding to numerous questions from educators, including from the National Association of Secondary School Principals, who were seeking guidance. President Barack Obama’s position drew sharp criticism from Republican leaders Friday morning.

Still, the directive from top education officials and Obama won’t change day-to-day bathroom use in North Carolina’s public schools, according to the state’s schools chief.

In a phone interview with McClatchy late Thursday night, North Carolina Superintendent of Education June Atkinson said public schools statewide were already following bathroom use practices expected by the federal Education Department.

The HB2 law is subject to several lawsuits, she said, and the state legislation details no sanctions or direction for enforcement. HB2, Atkinson said, is in direct conflict with the Obama administration’s views and expressed standards.

Atkinson mentioned another bill floated in North Carolina that would clamp down on school bullying and promote safety, including gender identity as a protected class.

“It’s a very frustrating time for us in the state, especially those who are in education,” she said.

The letter, signed by officials at the federal Justice and Education departments and sent Friday morning, tells public school administrators they should ensure that all students, including those who are transgender, can attend school in an environment free from discrimination based on sex.

“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,” the letter says.

In Charlotte, it appears school district officials have not changed bathroom use policies at all since HB2 passed. Charlotte-Mecklenburg Schools spokeswoman Renee McCoy said Friday that the district meets with the families of any students with special needs – including issues related to gender identity – to work out appropriate learning plans for the children.

Charlotte schools, McCoy said, comply with federal Title IX, which prohibits discrimination in any education program and which the Obama administration says extends to bathroom preference.

McCoy said the school system had received no guidance from the North Carolina General Assembly or state government about HB2. Nor has the school system heard from federal education officials or the U.S. Justice Department since the legal fight over the issue escalated this week, McCoy said.

There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex. 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.

Attorney General Loretta Lynch

Pittenger: Obama acting like ‘monarch’

U.S. Secretary of Education John King issued a related statement saying: “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.”

In response, U.S. Rep. Robert Pittenger, R-N.C., blasted Obama’s administration, accusing the president of creating “new laws based on how he’s feeling today.”

“President Obama seems to believe he is a monarch, ruling through edict like kings of old, instead of governing responsibly as one part of an accountable, carefully divided system of government,” Pittenger said to McClatchy in a statement.

The Charlotte-area congressman said he was concerned about the government’s separation of powers over the issue.

“I’m actively engaged with colleagues in exploring reasonable options to restrict the ability of the executive branch to bully a state or local government. Our Founding Fathers gave us a system for changing or updating laws. It involves Congress, not royal decree,” Pittenger said.

Presumptive GOP presidential nominee Donald Trump also weighed in on the latest development in North Carolina’s fight against the federal government, saying in a round of TV interviews Friday morning that he thought the issue should be decided by the states.

Asked on “Fox & Friends” about whether boys should be able to use the girls’ bathrooms, he called it a “new issue” and said he didn’t yet have an opinion. “Right now I would just like the states to make that decision.”

Also Friday, the Obama administration sent a 25-page document describing policies in place in some schools around the country, such as installing privacy curtains or allowing students to change in bathroom stalls.

A top LGBT equality advocacy group praised the action late Thursday night.

“These groundbreaking guidelines not only underscore the Obama administration’s position that discriminating against transgender students is flat-out against the law, but they provide public school districts with needed and specific guidance guaranteeing that transgender students should be using facilities consistent with their gender identity,” said Human Rights Campaign President Chad Griffin.

News of Friday’s letter from federal officials to all schools broke just hours after the White House announced Thursday that it wouldn’t withhold education funding over HB2 while the state and Justice Department’s dueling lawsuits worked their way through courts.

That prompted North Carolina Gov. Pat McCrory to post Thursday night on Facebook, “The White House just announced that it won’t pull federal funding to North Carolina while we take them to court. Sometimes the only way to stop a bully is to stand your ground and stare them down.”

HB2 passed during a special North Carolina legislative session in late March in order to bar Charlotte’s city council from letting transgender people use public bathrooms that correspond to their gender identities – not necessarily their birth sexes. Republicans, and some Democrats, in the General Assembly voted in favor of addressing the bathroom issue and more in HB2.

Soon after, federal agencies launched a review of the law’s implications and determined that the measure conflicts with federal laws such as Title IX, which makes up part of North Carolina’s federal allocations for public education.

The U.S. Department of Education has never stripped funding from an entire state or even a specific school district over the issue of transgender students and restrooms – even when the agency has investigated and found alleged flaws in student equality.

Charlotte Observer reporter Michael Gordon contributed to this article.