Federal transgender bathroom directive faces major hurdle

Thirteen states are asking a federal judge to block a federal directive to public schools that requires school officials to allow transgender students to use the bathroom of their choice.

Jay Janner/Austin American-Statesman/AP
Republican Texas Attorney General Ken Paxton (r.) announces Texas's lawsuit to challenge President Obama's transgender bathroom order during a news conference in Austin, Texas, May 25.

An Obama administration directive requiring public schools to accommodate transgender students bathroom faces a major hurdle Friday, as 13 states urge a federal judge to strike down the order.

Leaders in the US Education and Justice Departments instructed in May that all transgender students in public schools be allowed to use the bathroom of their gender identity. Any ruling otherwise would violate Title IX, argued the Obama administration, a statute prohibiting discrimination based on sex at all institutions that receive federal funding.    

But Texas and 12 other states plan to ask a US judge in Fort Worth, Texas, to deny this recommendation.

The 13 states – Texas, Alabama, Wisconsin, West Virginia, Tennessee, Arizona, Maine, Oklahoma, Louisiana, Utah, Georgia, Mississippi, and Kentucky – say the US government’s latest directives are unlawful “radical changes” that will turn “educational settings across the country into laboratories for a massive social experiment.”

But the US Justice Department says the states’ legal filing has no standing, considering that the latest directives are merely recommendations and not law. The 13 states say the recommendation has law-like implications. If they fail to comply, for example, they could lose billions of dollars in federal funding. 

North Carolina became the first state to enforce a law barring transgender people from using the bathroom of their gender identity in March. Three months later, the Obama administration responded with the federal directive. 

All public schools in the country must allow students to use the bathroom that matches their gender identity, said the Obama administration in May in a declaration signed by both the Justice Department and the Education department. 

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” the secretary of the Department of Education said in a statement. “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.” 

But as Friday’s court case proves, the bathroom debate is far from settled. As The Christian Science Monitor’s Patrik Jonsson reported after Obama’s ruling: 

Critics retort: If biology can be questioned, then whither the laws of ‘common sense’? Why should identity rights trump privacy rights?...

Yet to others, the issue is deeply symbolic of a fight for national ideals and human liberation. And by taking a bathroom issue from a constitutional arm-wrestling match with North Carolina to nearly every schoolhouse in the nation, Mr. Obama is, presidential historians say, pushing for a tipping point on a new frontier of civil rights. And as it did during other civil rights eras, the bathroom has become the gauntlet.

Kimberly Shappley from Pearland, Texas, is the mother of 5-year-old Kai, who was born a boy but now identifies as a girl. As Ms. Shappley prepares her daughter for kindergarten, she has been fighting for her daughter’s right to use the female bathroom.

“I’m fighting for her happiness,” Shappley told the Pearland school board Tuesday, the Houston Chronicle reports. “I’m fighting for her freedom.”

But regardless of Obama’s recommendation, Kai will be forced to follow the current Pearland policy: use a boy’s bathroom or special accommodations, like the school nurse’s bathroom. Pearland has ensured that all kindergarten bathrooms are equipped with a single room, gender-neutral bathroom, but Shappley’s struggle is one of many parents across the country, especially in the 13 appealing states.

“We would acknowledge that most Americans and most Texans do not have an accurate understanding of who transgender people are,” Chuck Smith, the chief executive officer of Equality Texas, tells the Houston Chronicle. Public views of transgender people “are where they were 20 to 30 years,” compared to the evolved attitudes towards gay men and lesbians, adds Mr. Smith.

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