In the latest battle against North Carolina, over the rights of transgender people, the Obama administration is expected to issue an order on Friday (13 May) to all public school districts directing them to allow transgender students to use the bathrooms of their choosing. The decree cannot be enforced by law, but it does carry the threat of lawsuits or loss of federal aid.
"No student should ever have to go through the experience of feeling unwelcome at school or on a college campus," John B King Jr, the 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."
The decree comes after North Carolina and the Justice Department filed lawsuits against each other, over the law that requires individuals to use restrooms corresponding to the gender listed on their birth certificate instead of the one they identify with. The Justice Department argues the controversial law violates Title VII of the Civil Rights Act, while North Carolina officials refute that claim.
"A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so," a copy of the letter obtained by the New York Times states.
According to the letter, a school's obligation under federal law "to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programmes and activities even in circumstances in which other students, parents, or community members raise objections or concerns.
"As is consistently recognised in civil rights cases, the desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students."
The letter then goes on to state that once a child's parent or legal guardian asserts a gender identity for the student other than previously stated, the student is to be treated as that gender. School may, but are not required to, provide other accommodations for students seeking "additional privacy". The administration will also include a 25-page document discussing "emerging practices" used in schools around the country, the New York Times also reported.
Massachusetts transgender anti-discrimination bill passed
The administration's letter will arrive a day after Massachusetts moved its own transgender bill forward. Unlike the law in North Carolina, the Massachusetts transgender anti-discrimination bill allows equal access to public places regardless of gender identity. The bill, also referred to as S.735, was approved by the Massachusetts Senate on Thursday 12 May, by a vote of 33 to 4.
According to the Boston Globe, the legislation - which will allow transgender people to use the restrooms, locker rooms and changing rooms matching their gender identity - now heads to the House. "It's just a really huge victory for civil rights in Massachusetts," Senate President Stan Rosenberg, a Democrat, told reporters after the vote. "It's another chapter in the long story of fighting discrimination."
Several Republican-sponsored amendments were shot down while the bill was debated. One amendment would require individuals to use a change of birth certificate as proof of gender identity, MassLive reported. Opponents of the anti-discrimination bill—like supporters of North Carolina's HB2—claim they are concerned that male sexual predators will take the opportunity to enter women's toilets and locker rooms. Supporters, however, say the concerns are unfounded.