The departments of Education and Justice released a joint guidance to public school administrators explaining their obligations to ensure that “all students, including transgender students, can attend school in an environment free from discrimination based on sex,” according to a May 13 press release. The latest guidance builds upon recent court decisions and Education Department guidance that discrimination against transgender people constitutes illegal sex discrimination under federal law. The guidance explicitly states that schools receiving federal funding must treat transgender students consistent with their gender identity, including allowing them to use the appropriate restroom and locker room facilities.
Here’s what journalists need to know when reporting on the new guidance:
1. School Districts Across The Country Have Protected Transgender Students For Years Without Incident.
School administrators from 23 school districts and four universities across the country with trans-inclusive nondiscrimination policies have debunked conservative horror stories about allowing transgender students to use school facilities that correspond with their gender identity. In total, these schools serve an estimated 1.5 million students each year without any incidents of sexual harassment, assault, or inappropriate behavior as a result of allowing trans students to access bathrooms that align with their gender identity.
2. The Department Of Education Has Already Recognized Discrimination Against Transgender Students As Illegal Discrimination On The Basis Of Sex.
Title IX of the Education Amendments of 1972 prohibits schools that receive federal money from discriminating against students based on their sex. The guidance makes clear that federal agencies treat a student’s gender identity as the student's sex for the purposes of enforcing Title IX. The Department of Education has previously released similar directives. A 2010 anti-bullying guidance letter included protections for sexual orientation and gender identity. In 2014, the Department of Education clarified that the guidance on sexual harassment and sexual assault included protections for transgender students.
3. Several Federal Courts Have Ruled That Discrimination Against Transgender People Is Illegal Sex Discrimination.
The New York Times reported that while the Supreme Court has not weighed in on whether discrimination on the basis of gender identity is prohibited sex discrimination, several lower courts have. From a May 10 New York Times analysis:
In 2004, the United States Court of Appeals for the Sixth Circuit found that it does, and some other courts have since agreed. But in 2007, the United States Court of Appeals for the 10th Circuit made the opposite finding.
In 2011, the United States Court of Appeals for the 11th Circuit ruled that discriminating against a transgender person was sex discrimination — not based on the civil rights statute, but based on the 14th Amendment. And last month, relying on a 1972 law, Title IX, the United States Court of Appeals for the Fourth Circuit ruled that a high school must allow a transgender student who was born anatomically female to use the boys’ bathroom.
In 2012, the Equal Employment Opportunity Commission ruled, as the Sixth Circuit did, that discrimination against transgender people violated the Civil Rights Act’s ban on sex discrimination, a decision hailed by advocates as the executive branch’s first unequivocal statement to that effect.
4. The Federal Government Has Previously Cut Funding When Schools Refused To Comply With Civil Rights Laws.
The Civil Rights Act of 1964 enabled the federal government to withhold funds due to civil rights violations. The Washington Post reported that in the 1960s, the federal government “withheld funds … from more than 100 school districts in the south that refused desegregation,” according to education scholar Gary Orfield. School districts were required to adopt integration plans in order to regain funding. A private college in Pennsylvania lost funds in the 1980s when it refused to comply with Title IX over sex discrimination. More recently, DeKalb County schools in Georgia lost federal assistance when administrators obstructed federal discrimination investigations.