Although there is no mandate with the guidelinesoutlined in the letter sent today to school districts across the nation by the U.S. Department of Education and U.S. Department of Justice, the implied threat is there.
"It does send a very powerful message," said John Austin, president of the State Board of Education, who has been an advocate for the proposed policy that has stirred so much debate in Michigan.
The message? "That schools should take seriously that transgender kids exist and we're going to do what we can at the federal level to protect you," Austin said.
That could mean withholding federal funds from schools that don't comply or filing civil rights violation cases.
The "Dear Colleague" letter to schools is aimed at giving educators information "to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex," according to a joint news release from the education and justice departments.
"Schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status. The guidance makes clear that both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX."
Some Michigan schools have already been addressing the needs of transgender students — ensuring they are referred to by the name and gender they want, providing access to gender-neutral bathrooms or the bathrooms that fit their gender identity, and providing training to staff members so they know how to handle such issues.
"I think they're doing the best they can," said Farmington High junior Mike Currie, 16, who is transgender. He said his school has worked to meet his needs. But there's more all schools need to do. And while he said he understands some people don't want to see the federal government wade in, he thinks it's necessary.
"It's a really good thing that they decided to step in," Mike said.
The federal guidance in many ways reaffirms positions taken at the federal level in recent years. For instance, in December, the department’s civil rights divisionreached a settlement with a school district in Illinois, requiring it to provide access to girls' locker rooms to a transgender student.
It's been a hot button issue nationwide, including in Michigan, where a much broader policy addressing the needs of students who are lesbian, gay, bisexual, transgender and those questioning their sexuality (or LGBTQ) has faced a firestorm of criticism. That policy is being proposed by the Michigan Department of Education and the State Board of Education.
The policy would urge schools to do things such as providing professional development for staff on how to address LGBTQ issues; develop policies that protect LGBTQ students from harassment; support the creation of student-led clubs such as gay-straight student alliances, and provide support to families.
Several lawmakers — Rep. Phil Potvin, R-Cadillac; Sen. Patrick Colbeck, R-Canton, and Sen. Tom Casperson, R-Escanaba — asked the State Board to rethink the proposed policy during a meeting earlier this week. During a lengthy six-hour public comment session at that meeting, 67 residents spoke out against the policy while another 49 supported it.
Colbeck said today that Title IX refers to a person’s sex and not their gender identity.
“This is another attempt to legislate without the involvement of Congress,” Colbeck said. “They’re changing the law and it should be opposed and ignored by all schools in the state of Michigan. It has no legal bearing.”
Potvin agreed, saying Obama "is way over his bounds."
Potvin said he considers it a personal choice to be transgender, and said, "A personal choice is also a personal responsibility, not a public responsibility. It's a small minority looking for the public to be responsible for them, when they need to be personally responsible for themselves."
But for those who advocate for transgender children, the debate comes down to wanting a safe environment. Nicole Ellefson of Williamston, whose 17-year-old son is transgender, said she's excited about the new guidelines because "the level of debate around the issue in general has only gone from bad to worse."
While she likes the guidance, she prefers that the Obama administration issue an executive order that would have more teeth. It's unclear, for instance, whether the department will indeed withhold federal funding from schools that don't comply with the guidance.
"To me, it's still welcome," Ellefson said. "They're taking a firm stand of protecting rights of people. However, it leaves those of us with children who are transgender ... without any clear resolution on the protection of their rights."
Austin said the State Board of Education is listening to criticism. A chief one: The policy says that schools should refer to a student by the gender that student identifies with regardless of whether the parent knows. There have been cries that the provision cuts parents out of the process and takes away their parental rights.
Austin said the language likely will be changed to make it clear that parental involvement is important, but that schools should be alert to situations where if a parent learns about a student's gender identity it could put that student in danger of physical violence or being kicked out of the home.
He said the policy will also be revised to make it clear that when it comes to bathroom and locker room use, schools and school districts should work out policies that "work out the best ... for the safety and security of all students."
The policy now says schools should allow transgender students to use the bathroom and locker room that fits their gender identity.
State School Superintendent Brian Whiston said the MDE will review the federal guidelines to see how they align with the proposed state guidelines. He said the department will also weigh the nearly 13,000 public comments received online, in writing, by phone and in person.
"We are committed to listening and being considerate of that input, and shaping ultimate guidance that encourages schools to appropriately engage parents and flexibly determine bathroom and locker room policies that increase safety, and improve school engagement while respecting the dignity and rights of all students, including LGBTQ children," Whiston said.
The board likely won't take any action until August at the earliest.
The federal letter to school districts says a school's Title IX obligation requires them to 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."
"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."
Since Title IX is tied to federal education funding, the government could withhold funds from schools that don't follow the guidelines.
The letter is addressed to all schools that receive federal funding, including 16,500 school districts and 7,000 colleges, universities and trade schools. It also applies to charter schools, for-profit schools, libraries and museums that receive federal aid.
Highlights from the letter:
- Schools must take prompt action to end sex-based harassment, prevent its recurrence and remedy its effects.
- Schools must treat students based on their gender identity even if their identity conflicts with their education records or identification documents.
- Schools must allow transgender students access to rest rooms and locker rooms that fit their gender identity. Schools may make individual-user options available to all students who voluntarily seek additional privacy.
- Eligibility for sex-segregated athletics teams may not "rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex."
Contact Lori Higgins: 313-222-6651, firstname.lastname@example.org or @LoriAHiggins. The USA Today contributed to this report.
Source: Detroit Free Press