The Obama administration is directing public schools across the country to let transgender students use bathrooms that match their gender identity, a move that will expand nationally the argument over North Carolina’s controversial bathroom law.
The letter going out Friday from officials of the Education and Justice departments sets out the agencies’ view of what schools need to do under current federal law to provide an environment for students free of discrimination.
The letter, first reported by the New York Times, carries no specific threat for schools that do not comply. But the threat is implicit because violations of federal civil rights law can lead to a loss of federal aid to a school district, or enforcement action by the Justice Department.
The letter amplifies a national debate over gender identity and privacy that was kicked off by North Carolina’s law declaring that transgender people must use public bathrooms, showers and changing rooms that match the gender on their birth certificates. The state’s Legislature adopted the law to block an effort by the city of Charlotte that would have allowed transgender individuals to use facilities for the sex with which they identify.
The Justice Department and the state of North Carolina have already sued each other in federal court, with both sides seeking a ruling on whether the state law conflicts with federal civil rights legislation adopted half a century ago.
North Carolina officials argue that their law protects people who do not want to use private facilities with people of the opposite biological gender.
Atty. Gen. Loretta Lynch, in announcing that the federal government would take the state to court, had condemned the North Carolina law as “state-sponsored discrimination.”
The Obama administration bases its view on Title IX of the civil rights law, which says that schools receiving federal money can’t discriminate based on a student’s sex.
Officials concede that the law was not adopted with transgender individuals in mind, but say that discriminating against a student based on gender identity is a form of improper sex discrimination.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” U.S. Secretary of Education John B. King Jr. said in a written statement.
“Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law,” King said.
“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 dispute is far from resolved by either of the Obama administration actions this week. Their legal interpretation may empower some school districts that already agree with the administration, but those who disagree can probably just wait Obama out until his term ends.
White House officials said that no federal agencies would withhold any kind of aid until the issue has worked its way through the courts.
“The litigation and new suits arising from the guidance will take time to resolve at the district and appellate levels, and litigants may seek stays,” said Carl Tobias, professor at the University of Richmond law school. “All of these suits may essentially prevent implementation until Obama has left office.”
Even so, conservative critics are responding with fury to what they see as another unilateral action by Obama without approval of lawmakers.
Such deeply personal issues should be discussed and decided openly, said Rep. John Kline, a Minnesota Republican and chairman of the House Education and the Workforce Committee.
“This latest edict disregards the will and concerns of millions of students, parents, teachers, school administrators and religious leaders,” said Kline. “The secretary has the audacity to say this will promote an environment free of fear and discrimination, but what about the students, parents, and families who don’t share the president’s personal views?”
School board members are perfectly capable of handling such questions, said Rep. Jim Jordan (R-Ohio), a conservative ringleader in the House.
“There is no need for a blanket federal restroom policy that covers every school in America, especially one that comes with the threat of retaliation from the Obama administration for failure to comply,” Jordan said.
Obama aides contend the directive is meant to clear up confusion and help schools figure out how to handle the need. The letter comes in response to a request from school principals seeking legal and practical guidance, said White House Press Secretary Josh Earnest.
Earnest argues that the critics are the ones creating confusion and encouraging government overreach.
He questioned how officials would enforce a rule requiring people to use the bathroom assigned to the gender on their birth certificate. He singled out Texas Atty. Gen. Ken Paxton for his complaints about what he sees as a permissive bathroom rule at the local Target store.
“Is the Texas attorney general suggesting somehow that it would be practical to station a law enforcement officer outside of every public bathroom in an educational facility and check people’s birth certificates on the way in?” Earnest said Friday. “It certainly sounds like a government intrusion to me.”
Some school officials welcomed the letter. Los Angeles schools Supt. Michelle King said it helps the district in “providing a school climate in which students feel welcome and comfortable.”
“This is yet another opportunity to help our students develop the values to contribute to an ever-changing society,” King said in a written statement Friday.
For more on the Obama administration, follow @ChristiParsons
12:54 p.m.: This post was updated with additional reporting and context.
This post was originally published at 5:18 a.m.