The Obama Administration Issues Guidance Clarifying The Treatment Of Transgender Students and New Rules for Nondiscrimination in Healthcare
Today, the Obama administration issued a life-saving directive clarifying public schools’ treatment of transgender students, bringing us one step closer to ensuring that all young people can go to school free of the fear of discrimination. The comprehensive guidance, issued by the U.S. Departments of Education and Justice, seeks to provide educators the information they need to ensure that all students are free from discrimination based on sex, and states that treating transgender students contrary to their gender identity is a Title IX violation. This guidance is a historic move by the federal government that acknowledges long-standing and systemic exclusion of trans Americans.
The guidance was issued amidst to the ongoing fight over North Carolina’s discriminatory HB2, a law that prevents transgender people from using public bathrooms that corresponds with their gender identity. Following significant backlash to the bill, the Department of Justice (DOJ) sued North Carolina over the law, arguing that it violates federal civil rights law. In announcing DOJ’s complaint, Attorney General Loretta Lynch gave a strong and moving statement highlighting the high stakes of the fight: “Please know that history is on your side,” she said. “This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time.”
In response, Governor Pat McCrory (R-NC) filed a federal lawsuit seeking a declaration that the law does not violate federal civil rights law. Across the country, similar bills are pending before state legislators and the emotional and psychological impact of these laws is devastating.
Today’s directive explicitly spells out that transgender students must be able to use school restrooms consistent with their gender identity. The guidance also lays out public schools’ obligations to treat students based on their gender identity even if it differs from their school records or identification documents, respond promptly to sex-based harassment of all students, allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity, and protect students privacy related to their transgender status.
The Department of Education’s Office of Elementary and Secondary Education also released additional guidance called “Examples of Policies and Emerging Practices for Supporting Transgender Students,” which provides a compilation of policies and practices that schools across the country are already using to support transgender students.
While the guidance does not come with the full force of law, it does give the federal government the power to cut off federal funding for states attempting to discriminate against transgender students because the guidance states that under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status.
In other good news in the fight towards comprehensive discrimination protection for the LGBT community, the long-awaited implementation of the Affordable Care Act’s non-discrimination provision was also released today. This rule is a critical step forward in protecting all Americans from health care discrimination based on gender identity and sex stereotyping and expanding access to health care for millions of people.
BOTTOM LINE: North Carolina’s harmful law and similar efforts by other conservative lawmakers across the country prove we have a long way to go in ensuring that all LGBT Americans are safe from discrimination. But this week the Departments of Justice and Education have made clear to transgender students that mistreatment of any kind will not stand.
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