As students return to their classrooms, the Obama administration's transgender directive continues to provoke a variety of responses among America's public schools.
On one end of the spectrum, states like Massachusetts, California and Washington have embraced the administration's May directive that public schools and universities must allow students to use restrooms and locker rooms corresponding to their perceived gender identity rather than their biological sex. Some local school boards have responded positively as well, as in Charlotte, N.C., where the school board adopted a policy requiring teachers to use pronouns and names that reflect students' chosen gender identity.
On the opposite end of the spectrum, 24 states have mounted legal challenges to the administration's directive spread over three separate lawsuits. In one of those lawsuits involving 11 states, a federal judge in Texas ruled Aug. 21 that the Obama administration may not enforce its directive. The ruling adds to the varied and ambiguous landscape of court decisions on the matter.
Various school districts and parent groups—including some whose state and local government leaders have embraced the directive—also have filed lawsuits.
At issue in the legal challenges is whether the Departments of Education and Justice may regard so-called gender identity discrimination as included among sex discrimination under Title IX of the federal Education Amendments Act of 1972—even though the original legislation says nothing about gender identity.
This month, the U.S. Supreme Court temporarily blocked a lower court ruling requiring a Virginia school district to abolish restroom and locker room divisions based on biological sex alone until the matter is settled in court.
Matt Sharp, an attorney with the conservative legal organization Alliance Defending Freedom (ADF), told Baptist Press privacy and emotional protection of students who have been sexually abused are two key reasons to oppose the administration's directive.
Courts have ruled that even prisoners have a right not to be "forced to be in any state of undress around someone of the opposite sex," Sharp said. If the incarcerated retain that right, then surely public school children do as well.
In addition, Sharp said, the approximately one in 10 students who have been sexually abused can experience "trigger events" that cause them to relive psychological trauma "when their private, safe place" in a locker room or restroom is "violated by someone of the same sex that previously harmed" them.
Among developments across the country:
• Ohio's Highland Local School District south of Cleveland is suing the Departments of Education and Justice over their threats to withhold federal funding from programs for special needs and underprivileged children unless the district allows a transgender student access to "intimate facilities" designated for students of the opposite sex, according to an ADF news release.
The district has allowed the transgender student at issue to use single-occupancy restrooms and consented to other requests as well, ADF said. But the student's guardian filed a complaint nonetheless.
• Fifty-one families in Chicago-area Palatine, Ill., sued the federal government after a local school opened girls' restrooms to a student who is biologically male without informing parents, according to an ADF release. The district later opened locker rooms to the boy after the Department of Education threatened to cut federal funding.
• The Fort Worth (Texas) Independent School District backtracked last month after issuing a policy in April restricting the amount of information schools could provide parents regarding their child's gender transition, according to The Dallas Morning News. A revised policy, issued July 20 following a public outcry, states parents must be aware of their child's gender identity issues before special accommodations will be granted.
• In Charlotte, a June 20 training for public school faculty and staff by the local school district urged teachers to "avoid gender specific classroom management techniques," according to a PowerPoint presentation delivered at the training and given to Baptist Press by the North Carolina Values Coalition. Among the district's suggestions for teachers were to avoid grouping students according to sex and to refer to them as "scholars" or "students" rather than "boys and girls."
The presentation also stated, "Inadvertent slips may occur. Intentional refusals to use a transgender student's preferred name/pronoun violate this regulation."
Charlotte schools will not, however, allow students to use restrooms based on gender identity until the Virginia court case is resolved, The Charlotte Observer reported Aug. 4, noting that case was the basis for some of the district's policies.
Sharp, of ADF, said an overarching issue in the pending court cases is, "Do states have the right to [handle] this issue on their own, or does the federal government get to mandate what every school in the country must do when it comes to restroom, locker room and other private facility access?"
If the Supreme Court accepts a case regarding transgender restroom access this term, it likely would be decided in the spring or summer of 2017.