Public schools must permit transgender students to use bathrooms and locker rooms consistent with their chosen gender identity, according to an Obama administration directive issued Friday amid a court fight between the federal government and North Carolina.
Politicians in Texas, Arkansas and elsewhere vowed defiance - and other conservative states could follow suit - after the Obama administration told public schools across the U.S. to let transgender students use the bathrooms and locker rooms that match their gender identity. The directive from the U.S. Justice and Education departments represents an escalation in the fast-moving dispute over what is becoming the civil rights issue of the day.
In West Virginia, Attorney General Patrick Morrisey announced that he has joined with officials in seven other states in requesting that the 4th U.S. Circuit Court of Appeals re-hear a case in which it sided with a Virginia transgender student seeking to use the boys' bathroom.
On April 19, a three-judge panel of the court overturned the Gloucester County Board of Education's policy, finding that it violates Title IX, the federal law that prohibits discrimination in schools.
Before the panel's ruling last month, Morrisey had filed an amicus brief siding with the Gloucester school board. His new filing requests that the full set of 4th Circuit judges reconsider the case, arguing partly that the dictionaries at the time of Title IX's passage defined "sex" as a "biological category based principally on male or female reproductive anatomy."
"The panel majority's opinion is the first in the country to permit the United States Department of Education to interfere with local schools by unilaterally redefining the statutory term 'sex' - long and widely accepted to be a biological category - to include gender identity," the filing states. "No court has ever before accepted an interpretation of that term that would require, as here, that a biological girl is entitled to use the boys' restroom, and vice versa . . . the panel allowed the Department of Education to redefine the term 'sex' to include gender identity."
The federal guidance from leaders at Education and Justice says public schools are obligated to treat transgender students in a way that matches their gender identity, even if their education records or identity documents indicate a different sex.
Hope Tyler, who has a transgender son at a Raleigh high school, said she cried when she heard about the Obama administration directive.
"It means a lot to our kid. People don't realize that these kids in schools weren't having any bathroom issues before," she said.
"There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," U.S. Attorney General Loretta Lynch said in a statement accompanying the directive, which was being sent to school districts Friday.
The guidance does not impose any new legal requirements, but officials say it's meant to clarify expectations of school districts that receive funding from the federal government. Educators have been seeking guidance on how to comply with Title IX, which prohibits sexual discrimination in educational programs and activities that receive federal funding, U.S. Education Secretary John B. King 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," King said.
Shortly after the ruling in the Gloucester case, Betty Jo Jordan, executive assistant to West Virginia Schools Superintendent Michael Martirano, said the state Department of Education was planning to send guidance to school systems on how to handle the issue of which bathrooms transgender students should use.
On Friday, the state education department sent out the federal guidance to county superintendents, with the addendum that the state education department "encourages counties to ensure all students, regardless of gender identify, have adequate privacy protection in any restroom and/or changing facility."
Jim Withrow, general counsel for Kanawha County Schools, the state's largest school system, said that, in Kanawha, "individuals can use the bathroom of their gender identity."
"We don't have a written policy, but that's the law in the 4th Circuit," he said.
Withrow, who's been general counsel for 18 years, said questions about transgender students and which bathrooms they should use have only reached his attention two or three times in the past, but he doesn't remember how they were previously handled.
Under the Obama administration guidance, schools are told that they must treat transgender students according to their chosen gender identity as soon as a parent or guardian notifies the district that that identity "differs from previous representations or records."
There is no obligation for a student to present a specific medical diagnosis or identification documents that reflect his or her gender identity, and equal access must be given to transgender students, even in instances when it makes others uncomfortable, according to the directive.
"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," the guidance says.
The administration also is releasing a 25-page document of questions and answers about best practices, including ways schools can make transgender students comfortable in the classroom and protect the privacy rights of all students in restrooms and locker rooms.
The move was cheered by Human Rights Campaign, a gay, lesbian and transgender civil rights organization, which called the guidelines "groundbreaking."
"This is a truly significant moment. not only for transgender young people, but for all young people, sending a message that every student deserves to be treated fairly and supported by their teachers and schools," HRC President Chad Griffin said in a statement.
Staff writer Ryan Quinn contributed to this report.