A shift in federal policy affecting transgender students at public schools isn’t requiring local school districts to change course.
President Donald Trump’s administration last Wednesday rolled back an order issued under former President Barack Obama telling schools nationwide to allow transgender students to use the bathrooms and facilities consistent with their gender identities.
The move by the U.S. Justice and Education departments leaves it to the states to decide what policies to adopt. But New York will proceed as though the Obama guidelines are still in place, state officials said last week.
“In New York State, the law remains the law — and school districts have independent duties to protect transgender students from discrimination and harassment when they go to school,” state Attorney General Eric Schneiderman said in a Feb. 23 statement.
Schneiderman and MaryEllen Elia, the state education commissioner, told school districts last week that they have a responsibility under federal and state law to let transgender students use the facilities they choose, even without the Obama administration’s guidance in place.
Not doing so could amount to discrimination under Title IX of the Federal Education Amendments of 1972 and the state’s Dignity for All Students Act, a nondiscrimination statute governing schools, Elia and Schneiderman said.
The Obama administration’s order indicated Title IX’s prohibition on discrimination based on sex encompassed discrimination based on a student’s gender identity, which for transgender students does not match their assigned biological sex.
The order also threatened to pull federal funding from schools that did not follow its directives.
It aimed to protect transgender students amid a national debate about whether governments should dictate whether transgender people can use bathrooms matching their gender identity.
The Trump administration last week said the prior guidance lacked “extensive legal analysis” and amounted to federal overreach into educational policy over which states have primary control. A federal judge blocked enforcement of the Obama order last August.
The state Education Department advised school districts in July 2015 to review any gender-based policies, including those on bathrooms and physical education programs, and get rid of them if they lack a “clear pedagogical purpose.”
Superintendents in several North Shore school districts did not respond to or declined requests to comment for this story.
But Nancy Feinstein, president of the Herricks school board, said transgender students in her district have always been able to choose which facilities they use. That will not change moving forward, she said.
“We accommodate the students that we have in a way that works for them, and that’s how we’re going,” she said. “We don’t have any issues regarding the use of the facilities at this time, so we would just continue to do the same thing that we’re doing.”
The legal question of whether Title IX prohibits discrimination based on gender identity, not just sex, is still unsettled. The U.S. Supreme Court will likely answer it in a case this year involving Gavin Grimm, a transgender boy from Virginia who was not allowed to use the boys bathroom at his school.
But the decision will have little bearing on New York school districts because of the state law’s existing protections for transgender students, Jay Worona, a lawyer for the New York State School Boards Association, said in an article the association published last September.
Local school superintendents “have always and will continue to work to ensure that all students in Nassau County receive a quality education in an educational environment that is nurturing and safe and one that promotes understanding and tolerance,” Joseph Famularo, the Bellmore school district superintendent and president of the Nassau County Council of School Superintendents, said in a statement.
The Port Washington school district concluded a conversation about gender identity last year by deciding that graduates of Paul D. Schreiber High School would all wear gowns of the same color during commencement ceremonies.
The school previously had girls wear white and boys wear blue, but several students, including one transgender boy, asked for the change.