The Obama administration has issued a directive directing public schools to allow transgender students to use bathrooms matching their gender identity.
Actually, the guidance for school districts goes beyond restrooms in public and federally funded schools, discussing privacy rights and equal access to sex-segregated facilities such as locker rooms.
A joint letter from the education and justice departments is going out to schools May 13 with guidelines to ensure that "transgender students enjoy a supportive and nondiscriminatory school environment," the Obama administration said. The letter does not carry the force of law but made clear that schools could lose federal funding if they do not comply.
The development follows opposing lawsuits between the Department of Justice and North Carolina over the state's controversial House Bill 2.
Pro-LGBT groups cheered the directive.
"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 in a statement. "This is a truly significant moment not only for transgender young people but for all young people, sending a message that every student deserves to be treated fairly and supported by their teachers and schools."
National Center for Transgender Equality Executive Director Mara Keisling said: "We've seen over and over that transgender students who are included and respected can thrive at school. But this year, some legislators and anti-trans extremists have been encouraging schools to deny transgender students basic educational opportunities by preying on baseless fears and cooking up confusion about what federal law requires. That's why transgender young people, their families, and their schools have so desperately needed this guidance from the federal government. We're thrilled that Secretary John King and the Obama Administration have finally taken action to protect transgender students all over the nation."
Policies that treat transgender students equally, including when it comes to restroom access, have been successfully tried and tested for years in thousands of schools around the country. But even though many schools have been doing the right thing without any threats to anyone's privacy or safety, too many transgender students continue to go to schools where they face discrimination, harassment and even violence.
The Department of Education's policy letter will be critical to protect the rights of all transgender students, NCTE said. NCTE has advocated vigorously for the release of a letter such as this one, which has been one of our top policy priorities, over the course of several years. The letter and accompanying guidance is expected to not only cover access to facilities, but also issues such as dress codes and confidentiality.
Chicago Public Schools Chief Education Officer Dr. Janice K. Jackson stated: "CPS issued new guidelines last week to support transgender students, employees and adults to help ensure everyone in the CPS family feels safe and supported in our schools. We are proud to see our guidelines noted among the Department of Education's Emerging Practices for Supporting Transgender Students, and we are hopeful that the federal guidelines issued today will help ensure students and adults throughout the country are able to participate in school environments free of discrimination."
U.S. Departments of Education and Justice Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students
The U.S. Departments of Education and Justice released joint guidance today to help provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex.
Recently, questions have arisen from school districts, colleges and universities, and others about transgender students and how to best ensure these students, and non-transgender students, can all enjoy a safe and discrimination-free environment.
Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student's sex, including a student's transgender status. The guidance makes clear that both federal agencies treat a student's gender identity as the student's sex for purposes of enforcing Title IX.
"No student should ever have to go through the experience of feeling unwelcome at school or on a college campus," said U.S. Secretary of Education John B. King Jr. "This guidance further clarifies what we've said repeatedly - that gender identity is protected under Title IX. Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law. 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."
"There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," said Attorney General Loretta E. Lynch. "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. I look forward to continuing our work with the Department of Education - and with schools across the country - to create classroom environments that are safe, nurturing, and inclusive for all of our young people."
"Our federal civil rights law guarantees all students, including transgender students, the opportunity to participate equally in school programs and activities without sex discrimination as a core civil right," said Department of Education Assistant Secretary for Civil Rights Catherine E. Lhamon. "This guidance answers questions schools have been asking, with a goal to ensure that all students are treated equally consistent with their gender identity. We look forward to continuing to work with schools and school communities to satisfy Congress' promise of equality for all."
"Every child deserves to attend school in a safe, supportive environment that allows them to thrive and grow. And we know that teachers and administrators care deeply about all of their students and want them to succeed in school and life," said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division. "Our guidance sends a clear message to transgender students across the country: here in America, you are safe, you are protected and you belong - just as you are. We look forward to working with school officials to make the promise of equal opportunity a reality for all of our children."
The guidance explains that when students or their parents, as appropriate, notify a school that a student is transgender, the school must treat the student consistent with the student's gender identity. A school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.
The guidance also explains schools' obligations to:
—Respond promptly and effectively to sex-based harassment of all students, including harassment based on a student's actual or perceived gender identity, transgender status, or gender transition;
—Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;
—Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and
—Protect students' privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act.
At the same time, the guidance makes clear that schools can provide additional privacy options to any student for any reason. The guidance does not require any student to use shared bathrooms or changing spaces, when, for example, there are other appropriate options available; and schools can also take steps to increase privacy within shared facilities.
In addition to the Departments' joint Title IX guidance, the Department of Education's Office of Elementary and Secondary Education also released Examples of Policies and Emerging Practices for Supporting Transgender Students, a compilation of policies and practices that schools across the country are already using to support transgender students. The document shares some common questions on topics such as school records, privacy, and terminology, and then explains how some state and school district policies have answered these questions, which may be useful for other states and school districts that are considering these issues. In this document, the Education Department does not endorse any particular policy, but offers examples from actual policies to help educators develop policies and practices for their own schools.
Many parents, schools, and districts have raised questions about this area of civil rights law. Together, these documents will help navigate what may be a new terrain for some.
The mission of ED's Office for Civil Rights (OCR) is to ensure equal access to education and promote educational excellence throughout the nation through the vigorous enforcement of civil rights. OCR is responsible for enforcing federal civil rights laws that prohibit discrimination by educational institutions on the basis of race, color, national origin, disability, sex and age, as well as the Boy Scouts of America Equal Access Act of 2001. Additional information about OCR is available here: http:/www2.ed.gov/about/offices/list/ocr/index.html .
The mission of ED's Office of Elementary and Secondary Education (OESE) is to promote academic excellence, enhance educational opportunities and equity for all of America's children and families, and to improve the quality of teaching and learning by providing leadership, technical assistance, and financial support. Additional information about OESE is available here: http:/www2.ed.gov/about/offices/list/oese/index.html .
The Department of Justice's Civil Rights Division, created in 1957 by the enactment of the Civil Rights Act of 1957, works to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society. The division enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin. Additional information about the Civil Rights Division of the Justice Department is available here: www.justice.gov/opa/pr/us-departments-justice-and-education-release-joint-guidance-help-schools-ensure-civil-rights .
NCLR Applauds Federal Guidance on Title IX and Transgender Students
Today, the United States Department of Education's Office for Civil Rights (OCR) and the United States Department of Justice issued guidance on Title IX and the right of transgender students to attend school free from discrimination based on sex.
The guidance affirms that schools, colleges, and universities must provide transgender students with a safe and supportive environment and must:
— Provide transgender students access to all of the school's programs, activities, and facilities (i.e. restrooms, locker rooms, housing, and athletics) based on the student's gender identity;
— Refer to transgender students by their chosen name and pronouns, even if the student has not obtained a court-ordered name or gender marker change;
— Implement safeguards to ensure that a transgender student's gender identity remain private; and
— Respond appropriately to reports of harassment of transgender students.
"This is the boldest stance the federal government could take to support transgender students," said National Center for Lesbian Rights (NCLR) Transgender Youth Project Staff Attorney Asaf Orr. "This guidance could not be clearer—schools must treat transgender students with dignity and respect, providing them equal opportunities to succeed and thrive as they would any other student. We applaud this historic step, which sends the strongest possible message to transgender students and their families that they are valuable, equal, and welcome members of our national community. We look forward to working with the federal government and others to ensure this guidance is being implemented in school districts across the United States."
OCR first addressed the application of Title IX to a transgender student in Student v. Arcadia Unified School District, a complaint filed by the National Center for Lesbian Rights. That complaint alleged that the school district discriminated against a transgender student by denying him access to the boys' facilities and refusing to allow him to room with his male peers on an overnight field trip. The Department of Education and the United States Department of Justice negotiated an historic resolution agreement requiring the school district to treat the transgender student as male for all purposes. Since that resolution agreement, the Department of Education has reached similar resolutions to protect transgender students in several other cases and has repeatedly affirmed that. Title IX protects transgender students.
Full National Center for Transgender Equality statement
Today, the U.S. Department of Education released a historic letter to the nation's school districts that affirms that discriminating against transgender students is illegal under Title IX.
This detailed letter explains that schools and colleges have to ensure that transgender students are treated according to their gender identity in every aspect of school life. The letter, and accompanying Emerging Practices guide, covers name and pronoun use, confidentiality, harassment, participate in sports, application of dress codes, among other topics. The letter clearly states that all students have the right to full and equal access to restrooms and other facilities that match their gender.
Schools that don't follow these policies—including schools that exclude transgender students from restrooms consistent with their gender—are violating federal law, putting their federal funding at risk. Title IX overrides state laws like North Carolina's HB 2, which require schools to force transgender students into bathrooms that don't match their gender.
In response to this groundbreaking letter, NCTE Executive Director Mara Keisling said:
"We've seen over and over that transgender students who are included and respected can thrive at school. But this year, some legislators and anti-trans extremists have been encouraging schools to deny transgender students basic educational opportunities, by fanning baseless fears and cooking up confusion about what federal law requires. That's why transgender young people, their families and their schools have so desperately needed this guidance from the federal government."
Policies that treat transgender students equally, including when it comes to restroom access, have been successfully tried and tested for years in thousands of schools around the country. But even though many schools have been doing the right thing without any threats to anyone's privacy or safety, too many transgender students continue to go to schools where they face discrimination, harassment and even violence. The Department of Education's policy letter is critical to protect the rights of all transgender students. Its release has been one of NCTE's highest policy priorities, one we have vigorously advocated for over the course of several years.
"For so many students, the Department of Education's letter is literally life-saving," Keisling said. "It tells transgender students that they're not fighting against daily ignorance and exclusion alone: the federal government is prepared to fight right beside them to ensure that all schools are following the law. It tells them that they deserve to be treated with the same respect as everyone else—and that's something that's protected by law. The discrimination that transgender students face isn't going to vanish overnight, but this policy has real potential to push schools to improve their policies and change students' lives."
ACLU Comment on Education and Justice Department's Title IX Guidance for Transgender Students
WASHINGTON — The Departments of Education and Justice today announced comprehensive guidance that requires schools to treattransgender students in accordance with their gender identity.
James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project, had this reaction:
"With this guidance, the Education and Justice Departments are making it crystal clear what schools' obligations to transgender students are under federal law. It's about time schools understand that transgender students are fully protected. We owe our country's future leaders the freedom to be themselves during these crucial and formative years."
Gavin Grimm, a teenage transgender student and ACLU client in Virginia who last month won a court ruling guaranteeing the right of students to use restrooms consistent with their gender identity, had this reaction:
"I am so happy that with this new guidance, transgender students across the country have a new tool to ensure they are treated with dignity and respect at school. This guidance would have made a big difference in my life, and I'm happy that kids will be free to use the bathroom that reflects who they are."
Louise Melling, deputy legal director of the ACLU, had this reaction:
"These life-changing protections will have a profound impact on the health and well-being of millions of people in the country. This is a particularly significant win from the Obama administration for women, LGBT people, individuals with disabilities, and those with limited English proficiency. Prior to 1557 women and LGBT patients had no protection under federal law against discrimination in health care. The ACLU is thrilled that the rule makes clear that it is illegal to deny medically necessary health care coverage for gender dysphoria. In addition, we applaud HHS for rejecting calls to include a new religious exemption that would have allowed sex discrimination.
"While we had urged HHS, consistent with a landmark EEOC ruling and developments in the law, to make explicitly clear that discrimination based on sexual orientation is illegal, the rule clarifies that discrimination based on sex stereotypes is unlawful. As HHS implements this rule, we urge the Department to ensure it is providing robust protections to women and LGBT individuals."
More information on Grimm's lawsuit is here:
www.aclu.org/cases/gg-v-gloucester-county-school-board .
This press release can be found here:
www.aclu.org/news/aclu-client-comment-education-and-justice-departments-title-ix-guidance-transgender-students .
Lambda Legal Applauds New Federal Guidance on Transgender Students' Access to Bathrooms
(New York, NY, May 13, 2016) — The Obama Administration today issued new guidance directing public school districts across the country to allow transgender students to use the bathroom that corresponds with their gender identity. The guidance, contained in a letter signed by U.S. Department of Education and Department of Justice officials, was accompanied by a 25-page document detailing "emerging practices" being used by school districts to accommodate transgender students. Demoya Gordon, Transgender Rights Project Attorney at Lambda Legal, issued the following statement:
"This new guidance is a powerful and affirming statement recognizing the imperative that schools be safe, respectful and nurturing environments for all students. It recognizes that singling out transgender students for separate and unequal treatment is demeaning and harmful, and that compelling them to use bathrooms that don't correspond with their gender identity subjects them to potential abuse and harassment.
"Importantly, the new guidance is explicit that transgender students do not need to produce a medical diagnosis or birth certificate, but rather a parent's or guardian's assertion that a student's gender identity differs from previous records or representations will suffice. And, the guidance reaffirms what has been a long-accepted staple in the struggle for equal rights — the discomfort of some can never be used to justify the discriminatory treatment of others.
"All students deserve the opportunity to learn and thrive in school, free of harassment, discriminatory treatment and the threat of violence. This guidance, along with the accompanying documentation of best practices and the testimony of school leaders across the country that have successfully accommodated transgender students without incident, should put to rest the uninformed fear-mongering that has given rise to a spate of ill-conceived and discriminatory laws and policies at the state and local level.
"And make no mistake: schools and legislators that persist in denying equal educational opportunity for transgender students risk not only the health and well-being of those students, but expose themselves to litigation and the possible loss of millions of dollars in federal aid. Perpetuating discrimination is bad for business, bad for students, bad for all."
Read the new guidance here: www.lambdalegal.org/news/20160513_new-guidelines-trans-bathrooms .
Civil and Human Rights Coalition Applauds White House's Latest Historic Move to Advance Fairness and Equality
WASHINGTON — Nancy Zirkin, executive vice president and director of policy at The Leadership Conference on Civil and Human Rights, released the following statement in response to the Obama administration's move to protect transgender students' rights to use the restroom that matches their gender identity:
"The Obama administration has demonstrated once again that executive authority can be a powerful tool to fight discrimination in the face of hostile and intransigent opposition.
"Today's announcement sends a clear signal to the country that it is immoral to demonize and discriminate against transgender students and the LGBT community. Transgender students are routinely subject to violence, homelessness, and discrimination when they have the bravery to live their lives honestly and openly. These are the students we should lift up as role models, not demonize for political purposes.
"This is the administration that made this country safer for DREAMERs and their families; commuted the inhumane and unjust sentences of hundreds of Americans; banned the box for several agencies; and protected women and LGBT employees of federal contractors. Even as a hostile Congress has done everything in its power to stop the advance of progress, this administration has found a way to bend the arc toward justice.
"We still have a long way to go toward building a nation that's as good as its ideals, but today's announcement brings us one step closer."
Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, issued the following statement in support of the Department of Health and Human Services' (HHS') new rule to implement Section 1557 of the Affordable Care Act:
"We applaud today's announcement, which represents a major milestone in the Obama administration's efforts to ensure that everyone in America has access to quality, affordable health insurance coverage and health care. The Leadership Conference played a critical role in ensuring the inclusion of Section 1557 in the Affordable Care Act, which prevents discrimination against minorities and underserved populations. Since enactment, members of The Leadership Conference have strongly advocated for the full and complete implementation of Section 1557.Our organizations raised numerous issues in comments on the proposed rule, outlining specific suggestions to ensure that the law fully protects people of color, women, people with disabilities, seniors, people whose primary language is not English, immigrants, and LGBT individuals.
"Discrimination on the basis of race, color, national origin, sex, age, disability, or based on factors of other underserved populations creates unequal access to health and health care. We are pleased that the rule includes important new protections to prohibit sex discrimination; protects transgender people on the basis of gender identity; and largely protects lesbian, gay, and bisexual people on the basis of sex stereotypes. While we understand that the law is evolving, we hope that in the future, HHS guidance will follow the lead of the Equal Employment Opportunity Commission in expressly clarifying that all forms of discrimination based on sexual orientation are inherently sex-based and unlawful.
"We thank Secretary Burwell and the Obama administration for their commitment to the health and well-being of everyone in America. We look forward to robust implementation of this crucial new civil rights protection."
We Are Family response
(Charleston, SC) - Statement by Melissa Moore, the Executive Director of We Are Family on the release of guidance from the Department of Education on ensuring the civil rights of students:
"Today the U.S. Department of Education released guidance to help schools ensure the civil rights of all students. It says in no uncertain terms that schools must respect the gender identities of their students.
Finally, the struggles faced by transgender and gender non-conforming youth are getting the attention that they deserve. It is transgender people who are more often the targets of harassment and sexual assault, not the other way around.
Most people take for granted very basic things like going to the bathroom. It is difficult for transgender students to learn if they do not have access to facilities that match their gender identities. We cannot expect kids to be successful, well-rounded students if they cannot fully participate in campus life. We are doing a great disservice to transgender students and to our entire education system when we do not live up to values of fairness and equal opportunity.
We are Family urges the South Carolina Department of Education complies with these guidelines. Our state school system is one of the poorest in the nation, and we cannot risk losing millions of dollars in federal funding. Neither can we afford to defend against the lawsuits that non-compliance will most surely bring forth.
We should be doing more to ensure that all of our kids can be successful in schools and in our communities. Ensuring appropriate accommodations for students is an important first step. We applaud the Department of Education for their speaking out for the rights and dignity of all students."
Response from National LGBTQ Task Force Action Fund
Washington, DC, May 13, 2016 — Today, the Obama administration issued guidance directing public schools to allow transgender students to use bathrooms matching their gender identity. The National LGBTQ Task Force Action Fund issued the following statement:
"This is a big day for the transgender community. It means that the Department of Education's Office of Civil Rights will accept allegations of discrimination, investigate them, and may bring claims in federal court. The other implication — especially with regard to North Carolina's HB2 — is that the federal government will leave no stone unturned when enforcing already existing civil rights laws against illegal sex discrimination. This sends a clear message for the repeal of HB2 and to other states that are currently considering discriminatory legislation. This is very good news for the advancement of LGBTQ freedom, justice, equity and equality," said Victoria Rodriguez-Roldan, J.D., Director, Trans/Gender Non-Conforming Justice Project, National LGBTQ Task Force Action Fund.
Campus Pride response
Today Campus Pride commended President Obama and his administration as well as the U.S. Department of Education for their leadership inissuing new guidance for the safety and inclusion of transgender students. The new guidelines help to ensure transgender students will be treated fairly in public and federally funded schools, including equitable access to facilities such as restrooms and locker rooms.
"President Obama has affirmed today the lives of transgender young people and that they deserve human dignity and respect for who they are," said Shane Windmeyer, Executive Director of Campus Pride. "Saving lives of trans youth means taking action and responsibility to ensure their safety in schools. We applaud President Obama for his leadership and these guidelines that make it clear that discrimination toward transgender students is against the law. There is now direction, without any doubt, for public and federally funded colleges and universities that trans students are entitled to using facilities consistent with their gender identity."
Trans United Fund Reaction to Historic DOJ/DOE and HHS Announcements
From Alison Gill, a founding member of the Trans United Fund:
"Today is a historic day for the trans community and represents a tremendous step forward to making America a more fair, just and safe place for trans people of all ages. TUF is grateful to the Obama administration for standing with trans people and working to ensure that existing federal laws are applied fairly and appropriately to everyone. The guidance issued today by the Departments of Education and Justice under Title IX combined with the regulations issued by the Department of Health and Human Services, will help ensure basic protections for trans people in education, healthcare coverage and gaining access to medically necessary services. From schools to hospitals, the trans community now knows that their Federal government is there to protect and support them."
Last week, the release of Trans United Fund's video "Meet MY Child" went viral, with over 1.5 million Facebook views alone, giving voice to families of trans youth.
Trans United Fund is committed to building the political power of trans and gender expansive communities and our allies to advocate for trans equality. Trans United Fund accomplishes this mission through engaging trans and gender expansive people and our allies in the political process, building the political leadership and capacity of trans people and allies, and endorsing candidates with a commitment to our communities and a pro-trans platform.Trans United Fund is a non-partisan 501(c)(4) organization.
For more information go to www.transunitedfund.org .
AFT's Weingarten on New Protections for Transgender Students
WASHINGTON—Following the joint guidance released today by the departments of Education and Justice on extended protections for transgender students in American public schools, AFT President Randi Weingarten released the following statement:
"I applaud the departments of Education and Justice for taking action to ensure transgender students feel safe in school. This step forward is vital, not just for our most vulnerable students but for the entire school community.
"America is at its best when we are inclusive. Recognizing that a person's gender identity should be respected is a move every American should be proud of.
"As a union, the AFT has a long history of fighting discrimination, including requiring locals to desegregate in the 1950s and filing an amicus brief in support of Brown v. Board of Education. This fight continues today with our efforts to fight for LGBTQ-inclusive union contracts, signing on to the LGBT Healthcare Bill of Rights, and working for full and equal access to facilities for transgender students.
"As a gay woman, the fight to change laws and attitudes is also quite personal. It has given me great hope about America, as centuries of discrimination against gay people have given way in the last few years to widespread legal and societal acceptance and rights. This is why I was proud to join Delaware Gov. Jack Markell yesterday in a broader fight against transgender discrimination and in applauding today's move by the Department of Education and the Department of Justice."
TLDEF Applauds Obama Administration
New York, NY - The Transgender Legal Defense & Education Fund (TLDEF) applauds the Obama Administration for issuing a directive to all public schools in the nation stating they must allow transgender students to use bathrooms that match who they are as boys and girls.
Today the U.S. Education and Justice Departments sent a letter andguidance to every school district in the U.S. reminding them of their obligations under Title IX to protect transgender students from discrimination, which includes ensuring that students can access bathrooms and locker rooms that match their gender identity.
The letter reads in part: "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 also states that "to ensure nondiscrimination on the basis of sex requires schools to 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. 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."
Statement from TLDEF Executive Director Michael Silverman
"This action is a huge milestone in the fight to protect transgender students in our nation's schools. We strongly commend the Obama Administration for giving schools this vital tool to ensure that all transgender students can learn in a safe environment, free from discrimination.
"TLDEF has been on the forefront of the fight for equal treatment of transgender students. In 2013, we won a landmark victory before the Colorado Civil Rights Division, when it ruled that 6-year-old Coy Mathis' elementary school had unlawfully discriminated against her when it denied her access to the girls' bathroom because she is transgender. That ruling opened the door for transgender students and their families to seek fairness and to demand that they be treated just like everyone else in school.
"Today's directive by the federal government sends a strong and clear message: Transgender students may not be singled out for discrimination and must be treated equally in school.
"As transgender people continue to face a barrage of legislative attacks throughout the country focused on issues like bathroom access, today's move by the federal government is a clear sign that the federal government, like the vast majority of Americans, stands on the side of fairness, justice and equal treatment for all Americans."
