Obama Administration Issues Bathroom Rules for Schools, Threatens Funding Cuts for Non-Compliance

May 13, 2016 Updated: October 5, 2018

The Justice and Education Departments issued a joint guidance for schools that requires them to allow students access to bathrooms, locker rooms, and dorm rooms based on the gender they identify with.

The guidance, published May 13, comes days after North Carolina Governor Pat McCrory and Attorney General Loretta Lynch sued each other over the so-called “bathroom law.”

North Carolina state law bans people from using bathrooms and changing rooms at public agencies, including schools, that don’t correspond to the sex stated on their birth certificate. Changing sex on a birth certificate usually requires a sex-change surgical procedure.

The administration says the law violates Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act of 1994.

McCrory disagrees.

Both say courts have sided with them in the past.

The new guidance maintains that Title IX of the Education Amendments of 1972 includes gender identity under the protected class of sex. Therefore it requires that schools:

  • Allow access to bathrooms, locker rooms, and dorm rooms based on gender identity;
  • address students with names and pronouns based on their gender identity;
  • allow participation in single-sex classes based on gender identity;
  • not disclose students original names and gender unless to school personnel with “a legitimate educational interest in the information;”
  • not discipline or exclude students from participating in activities, such as yearbook photographs, school dances, and graduation ceremonies, “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;”
  • “take prompt and effective steps” to end harassment based on gender identity, “prevent its recurrence, and, as appropriate, remedy its effects.”

On the other hand it allows, but does not require, schools to:

  • Offer single-person bathrooms, locker rooms, and dorm rooms to students who want them;
  • Base segregation in sports on sex, not gender identity, if based on “sound, current, and research-based medical knowledge” about the impact “on the competitive fairness or physical safety of the sport;”
  • base admission criteria on sex, not gender identity, for single-sex schools;
  • base membership on sex, not gender identity, for fraternities and sororities.

Under U.S. Code, “gender identity” means “actual or perceived gender-related characteristics.”

The schools and colleges that don’t follow the guidance face the risk of losing federal funding.

The administration said it won’t withhold federal funding for North Carolina while the “bathroom law” issue is being handled by the court system.

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