Obama administration links bathroom bills to Title IX funds

  • bathroom sign

(CNN) —The Obama administration will issue guidance Friday directing public schools to allow transgender students to use bathrooms matching their gender identity.

A joint letter from the Departments of Education and Justice will go out to schools on Friday with guidelines to ensure that “transgender students enjoy a supportive and nondiscriminatory school environment,” the Obama administration said on Thursday.

The announcement comes amid heated debate over transgender rights in schools and public life, which includes a legal standoff between the administration and North Carolina over its controversial House Bill 2. The guidance goes beyond the bathroom issue, touching upon privacy rights, education records and sex-segregated athletics, all but guaranteeing transgender students the right to identify in school as they choose.

“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” Attorney General Loretta Lynch said. “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.”

The letter does not carry the force of law but the message was clear: Fall in line or face loss of federal funding.

Justice and Education Department officials have repeatedly made clear that under their interpretation of Title IX, the federal anti-discrimination law in education, schools receiving federal funds 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,” the administration said Thursday.

LGBT groups praised the announcement, calling it a validation of transgender rights and a repudiation of so-called “bathroom bills” that ban people from using public bathrooms that do not correspond with their biological sex.

“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.

“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.”

The letter emphasizes the departments’ shared position that schools must treat transgender students the way they want to be treated based on their gender identity, regardless of how others may feel about it.

Schools should let transgender students use bathrooms, locker rooms and other sex-segregated facilities consistent with their gender identity, according to the guidance. Staff should address transgender students by their preferred names and pronouns. Schools cannot require students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate before treating them consistent with their gender identity, the guidance states.

“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 to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex,” the letter says.

The guidance takes the same approach to the bathroom issue: A school may provide gender-separated facilities but it must allow transgender students access to such facilities consistent with their gender identity. If a school opts for individual stalls it must make them available to all students.

U.S. Secretary of Education John B. King Jr. said the letter comes in response to request from schools and parents seeking guidance.

“This guidance further clarifies what we’ve said repeatedly — that gender identity is protected under Title IX,” he said. “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.


Dept. of Education: Yes, Title IX Protects Trans Students

The Department of Education is poised to release on Friday its most detailed guidelines to date explaining the obligations that schools receiving public funding have to their transgender students.

These obligations include respecting the gender identity of transgender students by using the student’s preferred name and pronouns, and ensuring them access to sports teams, educational opportunities, and sex-segregated facilities that correspond with their gender identity, according to a draft of the DOE letter obtained by The Advocate. 

The letter, which will be sent Friday to public K-12 schools nationwide, as well as to colleges and universities that receive federal funding, plainly defines a school’s responsibilities to its trans students under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in schools that receive any public funding.

“This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status,” reads the letter. “For purposes of the Department’s enforcement of Title IX, as explained in more detail in this letter, a student’s sex is determined by the student’s gender identity.”

The document further affirms that schools must use a student’s preferred name and pronouns, regardless of what is listed on the student’s official school records or government-issued identification. It notes that transgender individuals — especially young people — are frequently unable to attain updated legal documents, either because the state they live in does not allow such changes, because the student’s parents or guardians are not supportive of their identity, or because updating such documents is often time-consuming, costly, and frequently not an option available to people under the age of 18.

The letter, signed by DOE officials and members of the U.S. Department of Justice, is deemed a “significant guidance document,” though it is not legally binding. It builds on legal interpretations of Title IX’s trans inclusions long advanced by the Obama Administration, and marks the most direct instruction the federal agency has provided to schools since it issued a (much shorter) memo on the same issue in 2014.

The guidance comes in the same week that U.S. Attorney General Loretta Lynch delivered a historic speech affirming the civil rights of transgender Americans, promising that the Department of Justice and the entire Obama Administration will use its full force to put a stop to anti-transgender discrimination. Lynch (pictured above with Education Secretary Arne Duncan) also announced during that speech that the DOJ had filed a federal civil rights lawsuit against North Carolina for its discriminatory law known as House Bill 2, which, among other things, bars transgender people from using restrooms and locker rooms in government-run spaces that correspond with their gender identity.

The letter goes on to define several basic terms regarding transgender identities, many of which have been widely misinterpreted in the wake of controversial laws in North Carolina and Mississippi, which bar transgender people from using public facilities that match their gender identities.

The draft letter’s “terminology” section reads:

“Gender identity refers to an individual’s internal sense of gender.  A person’s gender identity may be different from or the same as the person’s sex assigned at birth.

Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth.

Gender expression refers to how individuals represent their gender to others, often through appearance or behavior.

Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”

The letter primarily focuses on the implementation of Title IX’s protections against sex-based discrimination in educational settings, stressing that the Department of Education “treats a student’s gender identity as the student’s sex for the purposes of Title IX.”

“This means that a school must not treat transgender students differently from the way it treats other students of the same sex,” continues the draft letter. “For example, a school must treat transgender female students the same way it treats other female students.”

Federal funding, including financial aid, is generally tied to a school’s compliance with Title IX, except in cases where a school has obtained a waiver — often seeking a religious exemption. As a condition of receiving those federal funds, schools must guarantee that they will not “exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex” any student attending the institution.

The letter instructs that a school must accept and affirm a student’s gender identity from the moment administrators are notified by the student’s parent or guardian. This affirmation includes providing equal access to the appropriate sex-segregated activities and spaces, including locker rooms and bathrooms.

Crucially, the letter notes that schools may not require any student to undergo any clinical, surgical, or mental health treatment as a condition of the school accepting the student’s affirmed gender identity. Schools also may not require that transgender students produce an updated birth certificate that reflects their gender identity as a condition of having that identity respected on campus. Such requirements constitute a violation of Title IX, the draft letter explains.

Further, the Department is clear that objections by other students, parents, or faculty to a transgender student’s identity are not legally sufficient reasons to deny that student equal access. In responding to such objections, the school cannot place “a greater burden on transgender students than other students.” Schools may address concerns about privacy in locker rooms or bathrooms by allowing all students access to alternate facilities, like single-stall restrooms, however a school may not require that only the transgender student use a separate facility.

“Discomfort with transgender people expressed by anyone, inside or outside of the school community, cannot justify denying transgender students equal access to educational programs and activities or treating transgender students inconsistent with their gender identity,” reads the draft letter.

The letter goes on to outline “common issues” that schools and administrators may face when working to support transgender students, including ensuring a “safe and nondiscriminatory environment,” using correct names and pronouns, protecting a transgender student’s privacy (including their birth name and sex assigned at birth) and ensuring equal access to sex-segregated activities and facilities.

While Title IX does allow for sex-segregated facilities, athletic teams, housing, and in some cases, entire schools, the draft letter is adamant that transgender students be granted access to such spaces that correspond with their gender identity.

In an example that seems pulled from the headlines of a drawn-out legal battle in Palatine, Illinois, where a transgender girl was barred from using the girl’s locker room and bathroom, and instead required to use a separate staff bathroom to change for class, the letter explains:

“A school may not require transgender students to use facilities inconsistent with their gender identity (e.g., a school may not require a transgender female student to use the male restroom) or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user facilities available to all students who seek additional privacy.

“For example, the Department may find a violation where a school requires a transgender student to use the nurse’s office to change for gym class. In that scenario, one nondiscriminatory way in which to accommodate any privacy concern would be to allow the transgender student to access the locker room consistent with the student’s gender identity and, if necessary, make other arrangements to increase privacy for all students without isolating or burdening the transgender student, such as rearranging locker assignments, hanging privacy curtains, or providing all students with access to individual-user alternatives.”


Blue for Boys, White With Flowers for Girls: When Commencement Is an Exercise in Discrimination

Libby Ryan and Jordan D’Addeo are unlikely rabble-rousers. Both are A students and highly involved in their school and community. Libby is a four-time All-State musician and principal oboist in Connecticut’s All-State Band, winner of the Daughters of the American Revolution Citizenship Award, Class of 2016 Treasurer, a member of the National Honor Society, and a member of the student council who has donated over 400 hours of community service with various organizations in the area. Jordan is the class salutatorian with near-perfect SAT scores, winner of the Rensselaer Medal, National Merit Finalist, AP Scholar with Honor, and captain of the high school Quiz Bowl and math teams. They both love their school, their teachers, their friends, and their school administrators. And they are weeks away from graduating from Nathan Hale-Ray High School in East Haddam, Connecticut.

But as they prepare to celebrate with their classmates, they find themselves up against a tradition that distracts from the achievements that graduation is meant to recognize. By tradition, boys wear blue gowns at graduation; girls wear white. Also by tradition, boys and girls will file into the ceremony venue in separate lines, girls carrying flowers purchased out of class dues. This policy discriminates not only against transgender students and students with nonconforming gender identities, forced to publicly choose a gender, but also against female students who are literally draped in a symbol of female purity laden with gender stereotypes.

Graduation Gowns, Gender, and Controversy

Since early March, some students at Nathan Hale-Ray High School have been asking that the gender distinction be dropped at graduation and that students all wear graduation robes of the same color. To date, school administrators have not agreed to the change, and time seems to be running out. Last Tuesday, students were told they could choose a different color than the one that corresponded to their biological sex as long as they had the permission of their parents. The parental-permission requirement was dropped the next day, but the gender-specific robe color was not.


The Sexism of School Dress Codes

Source: The Atlantic

These policies can perpetuate discrimination against female students, as well as LGBT students.

Maggie Sunseri was a middle-school student in Versailles, Kentucky, when she first noticed a major difference in the way her school’s dress code treated males and females. Girls were disciplined disproportionately, she says, a trend she’s seen continue over the years. At first Sunseri simply found this disparity unfair, but upon realizing administrators’ troubling rationale behind the dress code—that certain articles of girls’ attire should be prohibited because they “distract” boys—she decided to take action.

“I’ve never seen a boy called out for his attire even though they also break the rules,” says Sunseri, who last summer produced Shame: A Documentary on School Dress Code, a film featuring interviews with dozens of her classmates and her school principal, that explores the negative impact biased rules can have on girls’ confidence and sense of self. The documentary now has tens of thousands of YouTube views, while a post about the dress-code policy at her high school—Woodford County High—has been circulated more than 45,000 times on the Internet.

Although dress codes have long been a subject of contention, the growth of platforms like Facebook and Instagram, along with a resurgence of student activism, has prompted a major uptick in protests against attire rules, including popular campaigns similar to the one championed by Sunseri. Conflict over these policies has also spawned hundreds of Change.org petitions and numerous school walkouts. Many of these protests have criticized the dress codes as sexist in that they unfairly target girls by body-shaming and blaming them for promoting sexual harassment. Documented cases show female students being chastised by school officials, sent home, or barred from attending events like prom.

Meanwhile, gender non-conforming and transgender students have also clashed with such policies on the grounds that they rigidly dictate how kids express their identities. Transgender students have been sent home for wearing clothing different than what’s expected of their legal sex, while others have been excluded from yearbooks. Male students, using traditionally female accessories that fell within the bounds of standard dress code rules, and vice versa, have been nonetheless disciplined for their fashion choices. These cases are prompting their own backlash.

Dress codes—given the power they entrust school authorities to regulate student identity—can, according to students, ultimately establish discriminatory standards as the norm. The prevalence and convergence of today’s protests suggest that schools not only need to update their policies—they also have to recognize and address the latent biases that go into creating them.

* * *

At Woodford County High, the dress code bans skirts and shorts that fall higher than the knee and shirts that extend below the collarbone. Recently, a photo of a female student at the school who was sent home after wearing a seemingly appropriate outfit that nonetheless showed collarbone—went viral on Reddit and Twitter.
Read more ……… 



Issuing Graduation Gowns By Sex Is Wrong

Note: I have long held the position that having separate color graduation gowns is wrong.

Source: http://www.courant.com/opinion/op-ed/hc-op-fresh-talk-ryan-east-haddam-graduation-robes-0504-20160503-story.html

High schools should stop requiring male, female graduation robes, students say

May 4, 2016

On June 10, we will be graduating from Nathan Hale-Ray High School in East Haddam. Although graduation should be a joyful experience, our rite of passage has already been marred by controversy.

Over what? Graduation robes.

For decades, male students at Hale-Ray have marched at graduation in royal blue gowns, while female students have worn white.


It may seem so to some, but there are good reasons why sex-based distinctions like this one, in our view, violate the U.S. Constitution and Title IX. We have spoken to several law professors, including experts on gender discrimination, who agree with our position. Making whether we are male or female the most visible aspect of our graduation communicates the message that we are, first and foremost, men or women. Yet our gender has nothing to do with the accomplishments we celebrate.

We have studied in the same classes, received the same grades, played in the same music ensembles and will receive the same diplomas. Why then are we being distinguished based on our gender? Even something as arbitrary as separate robe colors creates the impression that our gender is more important than our accomplishments — a climate in which stereotypes flourish. Unfortunately, these stereotypes are only further cemented by the fact that a serious, professional color — blue— is assigned to men, while a color meant to suggest innocence and purity — white — is assigned to women. These symbols are powerful and reinforce harmful stereotypes that reach far beyond any particular sex-based distinction.

We honor and respect tradition; nevertheless, it should not be something to which people are so devoted that it impedes human rights. The law does not allow sex-based distinctions unless they are supported by a very good reason. And tradition is not an acceptable reason. In fact, sex-based distinctions based on tradition are especially suspicious, because they are so often based on outdated, harmful stereotypes.

Imagine having members of different races wear different colored robes at graduation and then justifying that practice based on the fact that we had always treated races differently. Different sports teams for males and females due to sex-based averages in sports ability are one thing, and allowed by Title IX. But just as it would be irrational to have a separate orchestra or physics class for males and females, it is irrational to distinguish students by gender at graduation.

While we are proud of who we are, our gender is not what has determined how we use our minds, serve our communities or learn to live ethically and responsibly. So, it is absurd that our gender is foremost at the ceremony in which these achievements are celebrated.

We are told it is too late to change the policy. That robes have to be ordered. This issue, however, was first raised in early March and we have been raising it ever since. The school administration has stonewalled progress and dragged its feet on implementing the much-needed change. Glastonbury High School just made the change in January when it was announced that all the graduating seniors would wear the same blue robes with white sashes. So should this year’s graduates from Nathan Hale-Ray.

We are saddened that this controversy is dividing our small, close-knit class. Derogatory comments and hurtful posts on social media continue to divide it further.

At the last minute, seniors were hastily given the choice to wear a different color than the one assigned to their gender. This compromise put students in the awkward position of deciding what to communicate, and how. What would it mean to choose the “other” color? What would it mean to conform to the administration’s expectations of us? The “compromise” suggests that the problem is which gender graduation robe we were assigned, rather than why our robes had to even be distinguished by gender at all.

The policy is wrong. And we are embarrassed for our community that it still exists.

Elizabeth T. Ryan will attend Indiana University this fall, where she plans to study music. Jordan E. D’Addeo will attend Rensselaer Polytechnic Institute this fall, where she plans to study cognitive science.

The Courant invites writers younger than 30 to write essays of 650 words or less containing strong views. Please email your submission to freshtalk@courant.com, with your full name, hometown, daytime phone number, age and occupation (or your school’s name and your level in school). You can also fax op-eds to 860-520-6941.


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