After the Department of Justice (DOJ) warned North Carolina Gov. Pat McCrory (R) last week that HB2 violated federal civil rights law, he warned other states that the federal government would require them to respect transgender students’ identities too. The DOJ, along with the Department of Education (DOE), seemed to agree that this was actually a pretty good idea.
On Friday, the DOJ and DOE are distributing a letter to the every school district in the country with guidance about how transgender students should be protected from discrimination. The letter is not an order, but it does come with the threat that if students’ gender identities are not respected, schools could face lawsuits or lose federal funding.
According to a copy of the letter provided to the New York Times, it instructs, “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.”
Likewise, schools should “provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” It pointedly adds, “As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
Many conservatives suggest that trans protections allow any student to use whatever bathroom they want. As Mike Huckabee disturbingly framed the issue last year, “I’m pretty sure I would’ve found my feminine side and said, ‘Coach, I think I’d rather shower with the girls today.’” That is not how these protections work. As is already common practice in the many schools across the country already accommodating trans students, the departments’ guidance is couched in parental involvement and making decisions for students who assert a transgender identity on a case-by-case basis.
The Obama administration will also provide schools with a detailed list of best practices already in place in many schools. For students who desire more privacy, schools could, for example, provide privacy curtains or allow students access to single-stall facilities. What schools cannot do, however, is require transgender students to use such facilities when other students are not.
The letter follows guidance issued by the DOE in 2014 that Title IX’s sex protections also protect transgender students from discrimination. With conservative lawmakers proposing restrictions on accommodating transgender students across the country — most notably North Carolina’s HB2, the only such bill to actually pass into law at this point — Friday’s guidance is a much stronger warning about how dedicated the departments will be to enforcing these protections moving forward.
Though opponents of trans rights are already lashing out that these protections will make girls unsafe, their fears are unfounded. Schools across the country have created fully inclusive environments for transgender students for years and never had a single problem as a result.
Dueling lawsuits filed this week in North Carolina have yet to resolve the consequences of HB2. The White House confirmed Thursday that it would not cut off federal funding while the cases were pending. With a fresh Fourth Circuit precedent deferring to the DOE’s guidance on its side, the DOJ is likely confident it can undo the harm of HB2 without leaving an entire state’s educational system high and dry.
Read the guidance in full: