Obama administration gives schools warning over transgender students' bathroom rights

Transgender students cheered the Obama administration's directive on Friday requiring U.S. public schools to allow them to use toilets and locker rooms consistent with their gender identity while some school districts said they would not comply.

Issue of transgender bathroom access flared into controversy after North Carolina passed HB2 law

White House backs transgender bathroom rights

6 years ago
Duration 2:19
Obama administration told U.S. public schools that transgender students must be allowed to use the bathroom of their choice or face funding cuts

Transgender students cheered the Obama administration's directive on Friday requiring U.S. public schools to allow them to use toilets and locker rooms consistent with their gender identity while some school districts said they would not comply.

"This is the strongest guidance to date from the federal government to schools instructing them on how they must treat transgender students fairly and without discrimination," said Ilona Turner, legal director at the Transgender Law Center in California. "This will be something that courts will have to give great weight to."

The letter, signed by officials from the U.S. Education and Justice Departments, intensified the debate over balancing equal rights with privacy concerns.

The Obama administration told U.S. public schools on Friday that transgender students must be allowed to use the bathroom of their choice, upsetting Republicans and raising the likelihood of fights over federal funding and legal authority. 

Transgender student Gavin Grimm, who won a U.S. appeals court ruling in April in his fight over bathroom access at his Virginia high school, said he was happy with the support from the Obama administration.

"This guidance would have made a big difference in my life," he wrote on Twitter.

Conservatives pushed back against the administration's non-binding guidance to schools, the latest battleground in the issue of rights for lesbian, gay, bisexual and transgender Americans. 

Texas Attorney General Ken Paxton said the guidance "must be challenged."

A Tea Party champion, he said in a statement, "If President Obama thinks he can bully Texas schools into allowing men to have open access to girls in bathrooms, he better prepare for yet another legal fight."

'Massive executive branch overreach'

Other Republican-led states joined calls to disregard the White House's directive and accused the administration of overstepping its role.

In North Carolina, Gov. Pat McCrory labeled the move a "massive executive branch overreach" and called on federal courts and the U.S. Congress to intercede, while Arkansas Governor Asa Hutchinson said it was "offensive, intrusive and totally lacking in common sense."

A gender neutral sign is posted outside a bathroom in Durham, N.C. A directive from the Obama administrative says U.S. public schools must allow transgender students to use bathrooms and locker rooms consistent with their chosen gender identity, even if their documents indicate a different sex. (Sara D. Davis/Getty Images)

The U.S. Education and Justice departments, in a letter, told school districts nationwide that while the new guidance carries no legal weight, they must not discriminate against students, including based on their gender identity.

The guidance contained an implicit threat that school districts defying the Obama administration's interpretation of the law could face lawsuits or be deprived of federal aid.

'Safety and dignity'

The White House defended its actions, saying the guidance should not be viewed as a threat but instead as a set of "specific, tangible, real-world advice and suggestions" that many schools had sought and will welcome.

"That's what we're looking for: Solutions that protect the safety and dignity of every single student in school," White House spokesman Josh Earnest told reporters at a daily briefing, adding that the idea was to prevent discrimination against a range of groups extending beyond the transgender community.

The directive came as the Justice Department and North Carolina are battling in federal court over a state law approved in March prohibiting people from using public restrooms not corresponding to their gender assigned at birth, while other states weigh similar measures.

But North Carolina's Lieutenant Governor Dan Forest said in a statement that the state would "not stand by and let our locker rooms and high school showers be used for social experimentation at the expense of the privacy and protection of our young boys and girls."

Forest advised schools to reject the policy and said a state law enacted in March restricting bathroom choice for transgender people trumped the administration's "non-binding directive."

People rally outside the North Carolina State Capitol in Raleigh in support of the HB2 law that blocks rules allowing transgender people to use the bathroom aligned with their gender identity. The state's so-called bathroom law has prompted nationwide debate. (Gerry Broome/Associated Press)

North Carolina's law was the first to ban people from restrooms in public buildings and schools not matching the sex on their birth certificate. Mississippi has enacted legislation similarly viewed as discriminatory by civil and gay rights groups, and Tennessee and Missouri considered similar measures.

In a sign of what defiant states may face, the Justice Department this week asked a U.S. district court in North Carolina to declare the state in violation of the 1964 Civil Rights Act and order it to stop enforcing the ban.

The letter to the schools from Washington said that, to get federal funding under existing rules, a school has to agree not to treat students or activities differently on the basis of sex. That includes not treating a transgender student differently from other students of the same gender identity, officials said.

The American Civil Liberties Union said the guidance would help make students "free to bring their whole selves to school." 

Protesters rally against House Bill 2, in Raleigh, N.C., a law limiting public bathroom access for transgender people, on April 25 (Chuck Liddy/The News & Observer via Associated Press)

A group representing U.S. school boards called the guidance "unsettled law."

"A dispute about the intent of the federal law must ultimately be resolved by the courts and the Congress," the National School Boards Association said in a statement.

Americans are divided over which public restrooms should be used by transgender people, a Reuters/Ipsos poll showed, with 44 per cent saying people should use them according to their biological sex and 39 per cent saying they should be used according to the gender with which they identify.

Donald Trump, the presumptive Republican presidential nominee, was less critical than many of his party in several television interviews, saying the issue should be left up to individual states.

"Everybody has to be protected ... but it's a tiny, tiny portion of the population," Trump told Fox News.