WASHINGTON — The U.S. Department of Education will tell school districts Friday that federal law requires them to allow students to use restrooms and locker rooms "consistent with their gender identity," escalating the pressure from the Obama administration on the contentious public debate over transgender rights.
In a "dear colleague" letter to school districts first reported by the New York Times, the Department of Education maintains that requiring transgender students to use same-sex facilities violates Title IX, the 1972 law that prohibits discrimination based on sex. The letter was provided to USA TODAY by two administration officials who would not discuss it publicly because it hadn't been sent.
"When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity," reads the letter, signed by two Obama administration officials responsible for enforcing civil rights laws: Assistant Secretary of Education Catherine E. Lhamon, and Principal Deputy Assistant Attorney General Vanita Gupta.
The move by the Obama administration comes the same week that the Justice Department and the state of North Carolina traded lawsuits over that state's law requiring people to use public restrooms that correspond to the sex on their birth certificate, providing an election-year clash on what's considered a volatile social and political issue.
But the guidance letter also has wide-ranging implications for transgender students in other facets of academic life. In a new interpretation of the Family Educational Records Privacy Act, it prohibits a school from disclosing a transgender student's birth name or biological sex, and requires schools to change the gender on school records and directories when asked.
The new guidance could also have an impact on participation in sports and extracurricular activities. While schools can have sex-segregated teams, eligibility for those teams may not "rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex."
And 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 guidance does not apply to fraternities and sororities, or to certain private single-sex schools.
A separate guidance document suggests best practices that help accommodate transgender students: Allowing them to use alternate facilities, installing curtains for added privacy, or adjusting schedules to allow them to change when no one else is using the locker room.
The guidance doesn't have the force of law, but tells schools how the Department of Education intends to enforce Title IX in the future. And because Title IX is directly tied to federal education funding, the guidance carries an implied threat: Follow the federal guidelines or risk losing those funds.
The letter is addressed to all schools that receive federal funding, including 16,500 school districts and 7,000 colleges, universities and trade schools. It also applies to charter schools, for-profit schools, libraries and museums that receive federal aid.
But the denial of federal funds appears to be a recourse the federal government is reluctant to take. Addressing the North Carolina 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."
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