The Obama administration on Friday ordered every public school in America to allow transgender students to use the bathrooms and locker rooms of the opposite sex.
The letter, which is legally nonbinding, was issued Friday and came amid a heated debate over which facilities transgender people should use.
The U.S. Department of Justice on Monday sued North Carolina over a law in the state prohibiting people of the opposite sex from using public facilities.
Now, every other state is liable to a similar lawsuit, and could risk losing millions in federal education funding if they do not comply with the order.
In response to the letter, North Carolina Gov. Pat McCrory on Friday called for the judiciary and legislative branches to restrain the executive, which he said has overstepped its authority.
He said the interpretation of Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972 — both of which bar discrimination on the basis of “sex,” not “gender identity” — should be left to the courts.
“We believe a court, rather than a federal agency, should tell our state, our nation, and employers across the country what the law requires,” Mr. McCrory said at a press conference.
Mr. McCrory also called on Congress to clarify the meaning of the law.
“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions under Title VII and Title IX,” the governor said. “Let me repeat that one more time, to all of our U.S. representatives and the leaders of both the Republican and Democratic Parties in Congress: Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions under Title VII and Title IX.”
Republicans contend keeping the sexes separate for the purpose of bathroom and locker room access is a matter of privacy and safety, while transgender advocates argue gender nonconforming people suffer irreparable harm by being denied access to the facilities of their gender identity.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” John B. King Jr., secretary of the Department of Education, said in a statement to The New York Times. “We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”
But conservative groups said such laws are dangerous to women and children. Peggy Nance, president and CEO of Concerned Women for America, accused the Obama administration of disingenuously purporting to protect children, while potentially putting them at greater risk by opening facilities to the opposite sex.
“Meanwhile, schools all over this nation, which have rightly worked on a case-by-case basis to accommodate kids struggling with gender dysphoria, may be forced to violate the privacy of other students and perhaps even create trauma for the very kids Obama pretends to protect,” Ms. Nance said.
The Obama administration has compared the fight for transgender rights to civil rights movements concerning race and sexual orientation. By implication, laws denying transgender people access to sex-segregated amenities are akin to state-sanctioned discrimination.
Attorney General Loretta E. Lynch made this position clear at a press conference on Monday announcing the lawsuit against North Carolina, when she compared that state’s law to Jim Crow race codes adopted after the Civil War.
“This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation,” Ms. Lynch said. “We saw it in the Jim Crow laws that followed the Emancipation Proclamation.”
Federal courts will ultimately decide the fate of the North Carolina law — and could determine the issue nationwide if a case reaches the Supreme Court.
The judiciary has so far split on whether federal “sex” discrimination laws also apply to “gender identity.” The highest court to weigh in on the issue, the U.S. Court of Appeals for the 4th Circuit, ruled last month that such laws do apply to gender identity, even though they do not mention the phrase.
The 25-page letter from the Obama administration will reportedly contain information on “emerging practices” for dealing with transgender students, including installing privacy curtains in locker rooms or allowing students to change in bathroom stalls.
Commenting on the North Carolina law last month, President Obama said it was “wrong and should be overturned.”
The announcement of the directive came just house after the White House said it would not attempt to curtail federal education funding from North Carolina in response to the law there.