A sweeping directive came today from the Obama administration that will mandate every school district in America to modify bathrooms to suit students with gender identity issues. In a letter going out today, signed by officials of both the Justice and Education department officials, it appears to make the implicit threat that schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid.
 
According to a communication from the two departments, the joint guidance is being released to “provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex.”
 
Citing Title IX of the Education Amendments of 1972, the missive said that schools receiving federal money 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.
 
“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” said Attorney General Loretta E. Lynch.  “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,” she continued. 
 
Also cited in the communication is Principal Deputy Assistant Attorney General Vanita Gupta, who heads the DOJ Civil Rights Division. “Our guidance sends a clear message to transgender students across the country: here in America, you are safe, you are protected and you belong – just as you are.”
 
The guidance calls on schools to treat students “consistent with the student’s gender identity.” Furthermore, “A school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.”
The guidance also explains schools’ obligations to:
 
“Respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity, transgender status or gender transition;
 
“Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;
 
“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 under Title IX and the Family Educational Rights and Privacy Act.
 
“At the same time, the guidance makes clear that schools can provide additional privacy options to any student for any reason.  The guidance does not require any student to use shared bathrooms or changing spaces, when, for example, there are other appropriate options available; and schools can also take steps to increase privacy within shared facilities.
 
In a “Dear Colleague” letter sent to education professionals, which featured a preamble in six foreign languages including Spanish and Vietnamese but not Arabic, it notes that the directive does not yet have the force of law. But, it does say that “ED and DOJ (the Departments) have determined that this letter is significant guidance.” This means “This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.”
 
Questions can be directed to: Department of Education ocr@ed.gov or 800-421-3481 (TDD 800-877-8339);
 
or DOJ at education@usdoj.gov or 877-292-3804 (TTY: 800-514-0383).
 
In addition to the departments’ joint Title IX guidance, the Department of Education’s Office of Elementary and Secondary Education also released Examples of Policies and Emerging Practices for Supporting Transgender Students: a compilation of policies and practices that schools are already using to support “transgender” students.
 
Under the new guidelines, for example, males who consider themselves females would be allowed to go on overnight trips, use locker rooms, and participate in sports with females.
 
The document shares some common questions on topics such as school records, privacy and terminology, and then explains how some state and school district policies have answered these questions.  In this document, the Department of Education does not endorse any particular policy, but offers examples from actual policies to help educators develop policies and practices for their own schools.
 
Below is a lexicon of terminology used in the debate over accommodating “transgender” students and educational accommodations.
 
According to the communication from the Obama administration, here is guidance on words to use:
 
“Understanding the needs of transgender students includes understanding relevant terminology.
 
Most school policies define commonly used terms to assist schools in understanding key concepts relevant to transgender students. The list below is not exhaustive, and only includes examples of some of the most common terms that school policies define.
 
Gender identity refers to a person’s deeply felt internal sense of being male or 
female, regardless of their sex assigned at birth. (Washington State Guidelines)
 
Sex assigned at birth refers to the sex designation, usually “male” or “female,”
assigned to a person when they are born. (NYSED Guidance)
 
Gender expression refers to the manner in which a person represents or expresses
gender to others, often through behavior, clothing, hairstyles, activities, voice or
mannerisms. (Washoe County Regulation)
 
Transgender or trans describes a person whose gender identity does not correspond
to their assigned sex at birth. (Massachusetts Guidance)
 
Gender transition refers to the process in which a person goes from living and
identifying as one gender to living and identifying as another. (Washoe County
Regulation)
 
Cisgender describes a person whose gender identity corresponds to their assigned
sex at birth. (NYSED Guidance)
 
Gender nonconforming describes people whose gender expression differs from
stereotypic expectations. The terms gender variant or gender atypical are also used.
Gender nonconforming individuals may identify as male, female, some combination
of both, or neither. (NYSED Guidance)
 
Intersex describes individuals born with chromosomes, hormones, genitalia and/or
other sex characteristics that are not exclusively male or female as defined by the
medical establishment in our society. (DCPS Guidance)
 
LGBTQ is an acronym that stands for “lesbian, gay, bisexual, transgender, and
queer/questioning.” (LAUSD Policy)

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Spero News editor Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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