The Obama administration wants public schools to stop discriminating against transgender students and let trans kids use the bathroom that aligns with their gender identity. But that goal hit a big obstacle on Sunday, when a federal court in Texas temporarily blocked enforcement of a guidance from the Obama administration that seeks to protect trans students in public schools.
Previously, the administration sent out guidelines that told schools they cannot discriminate against transgender students or block them from using the bathroom or locker room for their gender identity.
The guidance, first reported in the New York Times, doesn't set new, legally binding policy. Instead, it spells out the Department of Justice and Department of Education's existing policies to federally funded schools, based on the Obama administration's interpretation of federal civil rights law.
But the clarification, which was sent to schools across the country in May, immediately drew controversy from conservative state leaders. Quickly, Texas and 12 other states filed a lawsuit in federal court arguing that the Obama administration's guidance was unconstitutional — an attempt by the president to "rewrite the laws enacted by the elected representatives of the people," according to Texas Attorney General Ken Paxton, a Republican.
The federal court in Texas has not yet reached a decision in the case, but it agreed to temporarily block the Obama administration's guidance while the issue is settled in court.
It also came at a particularly heated time in the political battle over LGBTQ rights. Earlier on, the Justice Department and North Carolina had sued each other over the state's anti-LGBTQ law, which effectively blocks trans people from using the bathroom or locker room that matches their gender identity in schools and government buildings.
The Obama administration was trying to ensure that other states and schools didn't follow North Carolina's lead. But it looks like whether the Obama administration's guidance sticks will be left to federal courts.
The Obama administration's guidance tell schools to accommodate trans people — but it's not legally binding
The Obama administration's guidelines tell schools that they must allow transgender students to use the bathroom or locker room that corresponds with their gender identity. The rules also apply to sports teams, housing, fraternities, and sororities. This is the administration's longstanding policy, but the guidelines put this policy into very clear writing.
The Obama administration's basis for this: Title IX, which prohibits sex discrimination in education. The administration argues that bans against sex discrimination apply to gender identity, since discrimination based on gender identity — and against trans people — is fundamentally rooted in expectations of what people of certain sexes assigned at birth should be like.
Based on this view, school officials are discriminating — and violating civil rights law — if trans students are blocked from using a bathroom or locker room for their gender identity. After all, forcing trans people to use the facility that doesn't align with their gender identity acts as a reminder that society still isn't completely willing to accept them and their identities, even if trans people pose no danger to anyone else.
According to the administration's guidelines, schools can adopt changes for "additional privacy," such as privacy curtains or letting students change in bathroom stalls.
Our guidance sends a clear message to transgender students across the country: https://t.co/3IiLyLU7u7 pic.twitter.com/WxR6VJaR7m— Vanita Gupta (@CivilRightsAAG) May 13, 2016
But not all courts have validated the Obama administration's view. So the guidelines aren't legally binding — and the administration doesn't seem willing to yank federal funding from schools to enforce the guidelines until courts uphold its interpretation of Title IX. (This is Title IX's big enforcement mechanism: If states, cities, or schools violate it, they risk losing billions in federal funding.)
This is what the legal battle between the Obama administration and conservative state leaders is about. The Obama administration says its reading of federal civil rights law is correct, so all states should either lose federal funding for violating civil rights protections or respect their guidance. But the opposing states claim the administration's interpretation of federal civil rights protections is wrong — and gender identity is not included in the federal laws — so they are well within their rights to bar trans students from using the bathroom for their gender identity.
The outcome of the legal battle could be a big deal. If courts approve of the Obama administration's interpretation of federal civil rights law, it could effectively expand existing civil rights protections that explicitly ban discrimination based on race and sex, among other traits, to explicitly include gender identity. And that could, in turn, bleed over to federal civil rights laws beyond Title IX and education — such as the Civil Rights Act's protections in the workplace and the Fair Housing Act's provisions for housing.
But for now, the Obama administration's guidelines are simply a legally non-binding guidance. Still, they suggest that the Obama administration will attempt legal action against violators. And if courts do ultimately rule in the administration's favor, schools and states could lose billions in federal education funding for violating civil rights laws — a position no public official wants to be caught in. And that could be enough to deter schools and states from adopting policies similar to North Carolina's anti-LGBTQ law.
This entire issue is based on a big myth about trans people in bathrooms
It may appear odd that bathrooms and locker rooms have become such a huge deal in American politics over the past several months. And it is. But what's worse is that this became a huge political battle because of a big myth.
According to supporters of North Carolina's law, for example, letting trans people use the bathroom for their gender identity would pose a public safety risk. They claim that if trans people can use the bathroom that aligns with their gender identity, men will take advantage of such policies to disguise themselves as women and sneak into women's bathrooms or locker rooms to sexually assault or harass women.
Some conservatives have latched onto this myth, which had success with voters in Houston, to oppose laws that ban discrimination against sexual orientation and gender identity in the workplace, housing, public accommodations, and education. North Carolina's law, for instance, came after Charlotte added sexual orientation and gender identity to its nondiscrimination protections for public accommodations. (More on all of that in Vox's broader explainer.)
But even if trans people are allowed to use the bathroom for their gender identity, sexual assault remains illegal. So a legal deterrent to deviant behavior already exists.
There's also no evidence that nondiscrimination laws — and other policies that also let trans people use the bathroom for their gender identity — lead to sexual assault in bathrooms and locker rooms. In two investigations, Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.
Conservatives usually counter that there are examples of men sneaking into women's bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom or locker room for their gender identity. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.
One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto's province) protected trans people in a nondiscrimination law. So the law couldn't have been the cause.
Still, the myth remains prominent — to the point that the Obama administration felt compelled to release guidelines that make it clear acting on this myth could have very serious repercussions for schools.