Pushed by the controversial North Carolina legislation that requires transgendered individuals to use the restroom of the sex they were born with, the Department of Education has made it clear that federal law requires school districts to allow transgendered students to use the restrooms of the sex they identify with.

While the U.S. Department of Education has defended the rights of transgendered students on a case-by-case basis in the past, its latest guidance is ground-breaking in that it requires school districts to fully embrace the rights of transgendered students or otherwise be punished by the federal government.

Department of Education issues ground-breaking guidance on transgendered rights in schools

The Department’s guidance does not only require that school districts allow for transgendered individuals to use their preferred locker room or restroom. The guidance also requires that school districts not let gender identity interfere in a student’s participation in sports and extracurricular activities.

"The 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,' the guidance says,” according to U.S. News.

The guidance, addressed to the over 16,500 schools that receive federal funding, makes it clear that the Department will withhold federal funds for districts that fail to comply moving forward.

"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,” U.S. News said.

U.S. News says the guidance also contains a separate best-practices document for how districts should make adjustments to accommodate transgendered students.

"A separate best-practices document suggests ways to 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.”

Recent events indicate that the Department has a long road of enforcement ahead of it

An example from a school district in Illinois proves that the Department of Education will have a long road ahead of it as it begins to enforce its guidance. Last year, the Department ruled in favor of transgendered use of preferred facilities occurred in District 211 and the battle is still on-going.

In that case, the Department ruled that the school district disobeyed federal discrimination law by denying a transgendered student access to the girl’s bathroom and locker room.

"In an unprecedented decision, federal education authorities found that the district had violated Title IX. The district risked losing millions of federal dollars and a possible lawsuit by the federal government if it failed to reach a resolution. In a controversial decision, the district agreed in December to allow the student locker room access and installed privacy stalls. Proponents of the settlement heralded it as a civil rights victory,” said The Chicago Tribune.

Opposition, however, has been loud. The district is currently being sued by a group of students and parents who say the move is unlawful.

"In a lawsuit filed in federal court... the group contends that the actions of the Department of Education and Palatine-based Township High School District 211 'trample students’ privacy' rights and create an 'intimidating and hostile environment' for students who share the locker rooms and restrooms with the transgender student.”

In other words, the scenario perfectly captures the battle that the Department of Education will face as a heated opposition adjusts to the new mandates.

Tolerance to protecting transgendered rights varies by state. Whereas North Carolina managed to pass legislation banning transgendered individuals from preferred facilities altogether, Michigan recently issued a guidance that urged schools to let transgendered students be completely identified by their preferred gender, including in school documents and without parental consent. 

Related readings:

• DOE Makes Decision on Transgendered Educational Rights 
• Federal Threat to North Carolina Education Funding Looms in Wake of Transgender Bathroom Bill 
• New Guidance from Michigan Board of Education Pushes State Schools to Allow Students to Pick Gender Identities 
• State Issues Guidance for Helping Transgender Students 

Read more about the guidance.

5/13/2016

Nicole Gorman, Education World Contributor