Governor responds to questions about HB2
Infuriated by North Carolina’s new law prohibiting transgender students from using the bathroom of their choice, some advocates are warning that the state’s federal education funding might be at risk.
So far, however, the U.S. Department of Education has never revoked school funding over this issue – even when the agency has investigated and found alleged flaws in student equality.
That precedent, though, hasn’t been tested when applied to a state legislating which bathroom transgender students may use in school.
North Carolina is the first state to mandate that schoolchildren use only facilities that correspond to their sex at birth, advocates say. A similar law passed in South Dakota last month but was vetoed by the state’s Republican governor.
“These are uncharted waters on this issue,” said Nathan Smith, director of public policy for the Gay, Lesbian and Straight Education Network, which helps parents and students file discrimination complaints with the Education Department’s Office of Civil Rights.
Smith said that North Carolina, which receives about $4.5 billion in federal education funds, shouldn’t bank on the federal government maintaining the state’s education funding if it concludes that the new law violates federal law. Revoking federal funds, Smith said, is the U.S. Department of Education’s “ultimate leverage” over student-equality issues.
But the Education Department has never ruled on a transgender discrimination case involving an entire state’s public school system, and it has yet to do so against an individual school district.
Several months ago, the federal agency found in favor of a transgender high school student who had been barred from using a girls’ locker room for nearly two years. But that Illinois district didn’t lose funding, instead agreeing to a series of corrective actions, including allowing the student to use the girls’ locker room with privacy curtains installed for the use of any student.
Federal officials and agencies have been operating under the definition of “sex” – found in the Civil Rights Act of 1964 and Title IX education law – including not only birth gender but also sexual orientation, as well as protecting gender identity and transgender people.
Attorneys and those advocating the new North Carolina bathroom restrictions say the Department of Education would be stretching the definition and intent of federal nondiscrimination protections to apply them to the state. Mat Staver, a lawyer who’s the founder of the advocacy group Liberty Counsel, called the concerns about education funding “kinda overblown.”
“I don’t put any stock in that,” he said.
Staver’s group defended Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to gay couples last year. The group has a pending case against a Virginia school district that Staver argues overstepped its authority by naming LGBT people as protected under the district’s nondiscrimination policy. Virginia’s state law does not include LGBT protections.
Transgender students aren’t named or covered by federal education equality law, Staver contends, adding that the Education Department is currently making judgments absent final court decisions.
“The bark is more vicious than the bite,” he said. “I don’t think (the Education Department) wants to test that in the court system. I don’t think they’re going to win that argument.”
In recent years, federal officials and agencies have ruled that the term “sex” – found in the Civil Rights Act of 1964 and Title IX education law – refers not only to birth gender but also to sexual orientation as well as gender identity.
That means it’s possible that North Carolina’s new law asks school districts to enforce bathroom use in a way that some see as contradicting federal law. The Education Department has ruled that the law requires equal treatment when it comes to bathrooms and locker rooms. Separate facilities labeled gender-neutral are not an acceptable accommodation for transgender students if single-sex restrooms aren’t also accessible to them, the department has found.
But there’s still no certainty how federal officials would respond. There’s been no Supreme Court ruling on whether federal protections from discrimination based on “sex” include transgender people or whether states can legislate which bathroom transgender people use.
A case in Virginia of a transgender boy who was banned from using a school’s male facilities is on appeal in the 4th U.S. Circuit Court of Appeals, the same federal appellate court that covers North Carolina. But court challenges take years to work through the legal system.
Additionally, the Education Department is likely to respond only to a specific complaint, Smith said. Not until a parent or student complains of a violation to the Education Department’s civil rights office will an investigation begin.
Smith said his advocacy group would like to see clarity on the issue of transgender student equality – either from the Supreme Court or an update to federal law. He expects the Supreme Court to hear the issue eventually.
The outcome of such a case is hard to predict, he said. “In the meantime,” he said, “there are transgender students who are harmed by the new law.”