On 13 May 2016, the web site Young Conservatives published an article reporting that President Obama had decreed that all American schools must make all bathrooms transgender or face lawsuits and potentially lose federal funding:
President Obama decided to yet again defy the constitutional limits placed on his powers and released a directive stating public schools must allow transgenders to use the bathroom of their choice.
Well, the great state of Texas is saying no thanks and accusing the president of blackmail.
Apparently Obama doesn’t understand that transgender restrooms are a 10th Amendment issue, meaning it’s left up to the states to decide how to handle it and the federal government has no jurisdiction in the matter at all.
The ensuing media (and social media) flurries ended up obfuscating a number of details of the issue, with most versions holding that President Obama “decreed” that all schools must immediately implement such policies, lest they be dragged into court and lose funding. As usual, however, the truth was much less outrageous than the rumors.
On 13 May 2016, the U.S. Department of Education Office of Civil Rights and the U.S. Department of Justice Civil Rights Division issued a joint “Dear Colleague” letter [PDF] that included “significant guidance” to schools about civil rights protections for transgender students under Title IX of the Education Amendments of 1972. The letter detailed federal guidelines for transgender students and bathroom use and provided definitions for the terms “Gender identity,” “Sex assigned at birth,” “Transgender,” and “Gender transition”:
Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.
This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. This letter summarizes a school’s Title IX obligations regarding transgender students and explains how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) evaluate a school’s compliance with these obligations. ED and DOJ (the Departments) have determined that this letter is significant guidance.
This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations. If you have questions or are interested in commenting on this guidance, please contact ED[.]
Accompanying this letter is a separate document from ED’s Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students. The examples in that document are taken from policies that school districts, state education agencies, and high school athletics associations around the country have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment. Schools are encouraged to consult that document for practical ways to meet Title IX’s requirements.
Schools were informed that failure to supply legally entitled students with the necessary accommodations could constitute a violation of the obligations of federally funded schools:
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 unless expressly authorized to do so under Title IX or its implementing regulations.
The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.
The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.
Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
The letter also contained a portion about restroom and locker room use. That guidance stated that under Title IX, schools were prohibited from forcing students to use facilities inconsistent with their gender identity. That directive further stated transgender students could not be “segregated” from others in restrooms and locker rooms:
Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. 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. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.
Critics contended that school policies about bathroom access should be decided by states and local school boards, not the feds, and that the guidelines effectively create new federal regulations that may violate the 10th Amendment of the U.S. Constitution.