In a stunning overreach of executive authority, the Obama administration issued a decree Friday to all public schools ordering them to let transgender students use whatever bathroom they want to use. If schools do not comply, the administration made clear that they might face lawsuits or see essential funding withdrawn.
The administration’s policies embracing the self-determined “gender identity” argument over biological sex has never had such sweeping ramifications as this directive, as it impacts every public school of every level in the country. It also comes despite federal courts having yet to settle whether or not protections against sex discrimination actually apply to gender identity.
The order comes by way of a letter sent to all public schools Friday signed by officials from both the Department of Justice and Department of Education. Though the decree does not technically carry “the force of law,” as the New York Times notes, it contains an “implicit threat”: “Schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid.”
“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,” reads the letter, a copy of which the Times obtained. According to Justice and Education department officials, federal law ensuring the “nondiscrimination on the basis of sex” requires that schools “provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.”
The letter makes clear that the “comfort” of transgender students trumps the comfort of other students and their parents: “As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
Students must be treated by schools as if they are the gender they have self-determined if the students’ parents or legal guardians say they should. No medical diagnosis or any other form of proof of the child’s gender identity is required.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” said Education Secretary John B. King Jr., 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.”
The decree includes a 25-page list of “emerging practices” that instruct schools on how to best accommodate students who identify as a different sex than their biological sex.
Republicans have already begun to respond, Texas Gov. Greg Abbott announcing Thursday when the story first broke that he will sue the Department of Education over the decree.