When the U.S. Department of Justice sued North Carolina over its anti-trans “bathroom bill” on Monday, the suit—and especially Attorney General Loretta Lynch’s powerful explanation of the move—was widely viewed as a watershed moment in the quest for transgender equality. On Friday, President Barack Obama will throw the full weight of the executive branch behind that quest, at least as it manifests in schools: The administration will issue guidance to every district and public university in the country explaining that, under current interpretations of Title IX, they cannot discriminate against trans students.
While the guidance, which comes from the DOJ and the Department of Education, does not carry the force of law, it does put institutions on notice that discriminatory actions toward trans students may result in lawsuits and the withholding of federal money. The letter is clear about its expansive view of trans inclusion: “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.” In other words, everything from bathrooms and locker rooms to athletic teams and student housing must be equally accessible to trans students based on how they identify. Moreover, the guidance says schools may not require medical diagnoses or changes in birth certificate (which is currently difficult or impossible in many states) before making accommodations; a parent or legal guardian’s indication of the child’s gender identity is enough.
The Obama administration’s explicitness here is a big deal, but it shouldn’t come as a surprise. As my colleague Mark Joseph Stern has reported for some time now, the administration is following growing court consensus that Title IX covers trans people in its prohibition of sex discrimination. A 4th Circuit ruling on the matter from April is the most recent and important in a series of decisions supporting this interpretation.
There’s a certain prickliness in the timing of this announcement. North Carolina Gov. Pat McCrory has recently called for “clarity” on trans identity and civil rights protections as his state endures ongoing backlash over HB2—and now, Obama has provided it. Of course, McCrory is hoping that the judicial or legislative branches will weigh in on his side, but for the time being, the executive is leading the way. And that way is one that values trans dignity over whatever unreasonable fears McCrory and those like him harbor. As the letter states: “[T]he desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
Update, May 13, 9:43 a.m.: The guidance has been published.
