In a “Dear Colleague” letter, the Obama administration has issued guidelines explaining how public schools should treat transgender students. As a policy, it is good. As a political tactic, maybe not so much.
The directive says public schools should let students use bathrooms and dressing rooms that match their gender identity rather than the gender listed on their birth certificate. It has the potential to be a headache school districts just don’t need. It is one more case of schools finding themselves at the center of issues only tangentially related to education.
I have written in support of LGBT rights and in opposition to North Carolina’s bathroom law. I am glad the Justice Department will do legal battle with North Carolina. It’s the right way to make a high-profile point.
But threatening to lower the legal boom on every public school in America? Threatening to financially punish every public school in America? Again, maybe not so much.
You can debate whether that’s what the administration’s letter did. There is a basic difference in how the letter is being perceived:
Critics, characterizing it as yet another dictatorial decree by President Barack Obama, say it is an active threat to drag offending schools into court. Supporters say it is guidance, sought by school districts themselves, explaining how to avoid legal problems.
The “King Obama” interpretation – which many states have adopted – will put some schools squarely in the middle of a political fight they are ill-equipped to handle. If school officials comply with the guidance, they could run afoul of municipal and state officials who vehemently oppose the rules.
Those state politicians control purse strings. In some states, municipal officials also have some control over school funding. School boards will have to choose between losing local and state funding and losing federal funding.
There also is the potential for political backlash from the voting public. A school board that follows the federal guidance could be replaced by a more conservative board that affects a whole host of issues, such as deciding to teach creationism or canceling sex education.
There’s also the potential for voter backlash when public schools ask voters for money. Palm Beach County provides an example. There, the school district is teaming up with the county to ask voters to approve a 1-cent increase in the sales tax, with the schools’ share to be used for construction and renovation.
It’s not hard to imagine voters who will oppose the tax hike because they don’t want to build “transgender bathrooms.”
I’m not saying that objection would make sense. But a complaint or objection doesn’t have to make sense to be politically effective. If enough Palm Beach County voters latch onto that objection, it could sink the tax referendum.
Even if you take the benign view that the Obama administration was explaining how to avoid trouble, the guidance can cause trouble.
Suppose there is a transgender student who identifies as female but whose birth certificate indicates the student is a male. That student, under the guidance, should be allowed, if she chooses, to use the women’s bathroom and dressing room.
Might that make other students uncomfortable? Yes, but letter notes that “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 solution? The school is not allowed to provide a private bathroom or dressing room the transgender student is required to use. However, the district is allowed to provide a single-person bathroom or dressing room for any student who would feel uncomfortable using facilities with the transgender student. Think of it as an “Uncomfortables Only” bathroom.
Voluntary isolation is allowed while involuntary isolation is not.
Even in jurisdictions sympathetic to LGBT rights, there will be a huge demand for those single-user facilities. It is hard to blame non-transgender students who would want more privacy in those settings.
And that means many, many schools will have to provide those separate facilities. But that takes time, planning and money. And that will not be so easy.
Consider Broward County, for example. There, voters in November 2014 approved an $800 million bond issue for school construction and renovation. But the district so far has been woefully unable to get started on promised projects.
In addition, the district has lagged on construction projects promised and approved even before voters passed that bond issue.
In addition, a recent state audit found that the district had failed to fix 2,187 safety deficiencies, many of which have been outstanding for years.
So a district that already is behind in construction and can’t even mitigate known safety hazards now must find a way to add additional bathroom and dressing room facilities to its to-do list.
This is a civil rights issue. I get that. Maybe it has to be done this way. Maybe school districts just have to suffer through the headaches.
But maybe it would have been better to take on one school district or one state and fight that legal battle through to completion before putting every public school in the nation on notice.
Because one additional political consequence might be that this tactic works in Donald Trump’s favor. And it seems certain that if he is the next president, the Obama guidance will go into the round files of every public school in America.
Jac Wilder VerSteeg is a columnist for The South Florida Sun-Sentinel and former deputy editorial page editor for The Palm Beach Post.