Article May 13, 2016

Explainer: Federal Government issues letter on transgender policy to America's public schools

What just happened?

On Friday, May 13, the Obama administration sent a letter to all public schools in America notifying teachers and administrators of the regulations they must comply with in regards to their students’ “gender identity.”

The letter states that, to comply with Federal law, policies concerning students must be based on their gender identity and not on their biological sex.

By what authority is the Obama administration issuing this directive?

Although Congress is responsible for creating laws, they have ceded much of their authority to define what laws mean to the other two branches of government.

We often think the judiciary is the branch of government responsible for interpreting the law. But in reality most interpretation is done by the executive branch, whose departments act as regulatory agencies. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place.

This specific letter is a “significant guidance” document, a policy instrument that provides “initial interpretations of statutory and regulatory requirements and changes in interpretation or policy.” These type of directives are often used to “Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles…” This letter provides guidance on how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) will “evaluate a school’s compliance” with interpretation of laws regarding transgender students.

What law is being changed or interpreted by this letter?

This letter provides guidance on the Obama administration’s interpretation of Title IX of the Education Amendments of 1972, a law that prohibits discrimination on the basis of sex in education programs receiving Federal financial assistance. The administration has reinterpreted Title IX to make “gender identity” synonymous with “sex.”

The key sentence in the letter is “The Departments [ED and DOJ] treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” In other words, if a biologically male or biologically female student “identifies” as the opposite sex, then for almost all purposes public schools and colleges much treat them as such.

What are the potential penalties for refusing to follow this directive?

School districts who do not comply would be considered by the Obama administration to be in violation of Title IX, and could lose Federal funds for their school(s).

What exactly does “transgender” mean?

The letter says that, “Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth.”

More broadly, transgenderism is an umbrella term for the state or condition of identifying or expressing a gender identity that does not match a person's physical/genetic sex. A person can be transgender and “identify” as male, female, “third sex”, “genderfluid” (flexible about their gender identity and fluctuating between genders), “genderqueer” (not exclusively masculine or feminine‍), or dozens of variations.

Transgender is independent of sexual orientation, and those who self-identify as transgender may consider themselves to be heterosexual, homosexual, bisexual, pansexual, polysexual, or asexual.

What is “gender identity”?

As the letter defines the term, “Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.”

The LGBTQ community and their allies (including the Obama administration) consider gender to be a trait that exists along a continuum and is not inherently rooted in biology or physical expressions.

How does a student prove they are transgender?

They don’t have to prove anything; all that is required is for the student or student’s parent to notify the school. As the letter states, “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

But couldn’t a “genderqueer” or “genderfluid” student claim to be both male and female at the same time?

Yes they could. If they claimed to be both male and female they’d be allowed to use either male or female facilities or switch back and for the whenever they choose.

What if students or parents object to sharing a locker room with someone of the opposite biological sex?

The letter makes it clear such concerns do not matter, and that schools much provide “equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” Choosing one’s gender identity is now considered a protected civil right by the Obama administration. As the notes, that means, “ As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

Must schools now call male students “she” and female students “he”?

Yes. School staff and contractors must use pronouns and names consistent with a transgender student’s gender identity.

How does this directive affect restrooms and locker rooms?

Schools must allow students to use the facilities that align with their gender identity. They cannot require them to use facilities based on their biological sex or use individual-user facilities when other students are not required to do so.

How does this directive affect athletics?

The regulation is vague on this point. In general, if a biologically male transgender student wants to play the girl’s team they must be allowed to do so. However, the letter also says, “Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”

How does this directive affect single-sex classes?

When offering single-sex classes and activities, a school must allow transgender students to participate consistent with their gender identity.

How does this directive affect single-sex schools?

Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges. Those schools are therefore permitted under Title IX to set their own sex-based admissions policies.  

How does this directive affect fraternities and sororities?

Title IX does not apply to the membership practices of social fraternities and sororities. Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members

How does this directive affect housing and overnight accommodations?

Schools must allow students to stay in accommodations that align with their gender identity. For example, if on an overnight field trip, a biologically male transgender student could sleep in the same room with female students.

What if a biological male wants to wear a dress to prom?

According to the letter, a school “may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).”

When does this regulation take effect?

Immediately. The Obama administration consider this letter to merely be guidance that “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.”

See also: 

Russell Moore, “What the Transgender Bathroom Debate Means For You”​

Andrew T. Walker, “Obama administration issues sweeping transgender decree: What now?