WASHINGTON, May 13, 2016 — The U.S. Department of Education has informed school districts that federal law requires them to allow students to use restrooms and locker rooms “consistent with their gender identity.” The Education Department maintains that requiring transgender students to use same-sex facilities violates Title IX, the 1972 law that prohibits discrimination based on sex.
The DOE directive was delivered in the form of a letter that was sent to more than 16,000 school districts.
The move is certain to draw fresh criticism, particularly from Republicans, that the federal government is wading into local matters and imposing requirements on communities across the country that violate local standards. The DOE directive is not law, nor is it even an executive order, but it does contain a threat: Schools that do not abide by the Obama Administration’s interpretation of the law could face lawsuits or a loss of federal aid.
The directive is another example of the Obama Administration’s combined use of policies, lawsuits and public statements to change the civil rights landscape. The White House has come out in support gay rights and now wishes to put transgendered people under the civil rights umbrella. Its directive over bathrooms and locker rooms is the administration’s entry to that battle.
The denial of federal funds appears to be a recourse the federal government is reluctant to take. Discussing the North Carolina “transgender bathroom” law on Thursday, White House press secretary Josh Earnest said the Obama Administration “will not take action to withhold funding while this enforcement action is playing out in the courts.” The DOE’s new demands will not apply to fraternities and sororities or to certain private single-sex schools.
This is the latest move by the White House to appeal to the transgender community and fight for what it believes is “equal rights” within a classroom. The new demands by the Department of Education could impact participation in sports and extracurricular activities.
According to the letter, schools “may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity.” In yearbook photos, school dances and graduation ceremonies, for example, schools must allow students to dress and participate based on their chosen gender.
The guidelines set forth by the DOE and the White House come after North Carolina filed suit against the Department of Justice over HB2, it’s so-called “LGBT bathroom” bill. The Department of Education also suggests ways to help accommodate transgender students, including the use of alternate facilities, the installation of curtains or adjusting schedules to allow transgender students to change when nobody else is using the locker room.
It is difficult to see this directive as anything but an indication that the government is expanding its hold on the country with policies that are liberal in intent. Should Hillary Clinton become president, she will certainly continue to appeal to the LGBT community on the bathroom/locker room/changing room issue.
Forcing these demands on schools includes the possibility that people will use the policy as a cover to enter these private spaces to prey on children. Before arguing that the likelihood of that is small, the federal government should provide evidence demonstrating that the potential risk is outweighed by the benefits to a tiny population. The burden of proof is on them, not on the states and school districts.