The divisive and politically combustible issue of bathroom access for transgender individuals is about to become further inflamed, as the Obama administration is expected in coming weeks to aggressively reinforce its position that transgender student rights are fully protected under federal law, sources told Politico.
With the Justice Department already locking horns with North Carolina over the state’s so-called bathroom bill, the administration plans to reaffirm its view that robust protections for transgender students are within the existing scope of Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs and activities. Multiple agencies are expected to be involved.
It’s a step LGBT advocates have wanted the federal government to take for years. The legal protections include providing transgender students not just access to bathrooms and locker rooms that align with their gender identity but also affording them protections from bullying, harassment and sexual violence, and a right to privacy concerning their transgender status and transition.
The building political war over transgender rights has drawn vehement protest from the right and exposed and exacerbated simmering tensions within the Republican Party — and proved to be an effective issue for Democrats to use to mobilize their base.
But a bigger legal battle could be looming.
The confrontation in North Carolina over the White House’s disputed interpretation of Title IX of the Education Amendments of 1972 centers on a state law — passed by a Republican-controlled Legislature in a single-day special session — that requires transgender individuals to use a restroom corresponding with the gender listed on their birth certificate. The expected guidance will only increase the likelihood that Title IX is headed for a major legal battle — and possibly a case argued before the Supreme Court — to settle a patchwork of conflicting interpretations and challenges across lower courts and at every level of government.
“It’s important to recognize that there’s a lagging legal framework in the face of rapidly changing social norms,” said National School Boards Association general counsel Francisco Negrón. “Our understanding of gender identity is changing, and the law hasn’t kept up.”
“Certainly that’s the case here with Title IX,” he added. “The lack of specificity about gender identity in the law creates all kinds of room for folks on both sides of this issue to make arguments about how the law should be taken.”
Advocates and legal experts say that Title IX’s lack of clarity could become wrapped up with a host of other legal issues, such as the constitutional right to privacy and varying policies at every level of government, and result in transgender rights landing in some form before the nation’s highest court — as in the lead-up to the Supreme Court’s historic gay marriage verdict.
New guidance on Title IX represents a natural outgrowth of the administration’s aggressive agenda on gender equity and civil rights. In April 2014, guidance issued by the Education Department on sexual violence explicitly mentioned that transgender students are protected under Title IX. LGBT advocates saw it as an important moment for the transgender community but have wanted the administration to go even further in clarifying the law.
Additional guidance will likely raise the ire of many Republicans in Congress, however. Some lawmakers, like Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.), have already slammed the administration for federal overreach. Alexander has accused the Education Department of circumventing Congress, regulating the law through what should be nonbinding guidance and forcing colleges and universities to make changes, particularly when it comes to issues of sexual assault and harassment under Title IX. The administration has maintained that its previous guidance does not mandate anything, but instead clarifies existing federal law.
The Education Department sent a letter in March to Sen. James Lankford (R-Okla.), who has also demanded answers, stressing that the agency will make it clear that “guidance documents do not create or impose new legal requirements, but rather provide information such as our interpretation of applicable laws and regulations, policy statements and clarifications, and examples of best practices.”
The guidance would come on the heels of the Justice Department taking its strongest enforcement action to affirm transgender rights to date, warning North Carolina last week that its so-called House Bill 2 violates federal civil rights laws. DOJ also sent a letter to the University of North Carolina board of governors and UNC system President Margaret Spellings, arguing that the university’s enforcement of the law would violate Title IX and Title VII of the Civil Rights Act, which prohibit employers from discriminating in the workplace, and the Violence Against Women Act. The Obama administration has given the state and the UNC system until Monday to assure it they will comply.
http://www.politico.com/story/2016/05/obama-transgender-rights-schools-222922#ixzz48CZjtvoW
