Pence: Hoosiers should decide transgender bathroom issue, not feds

Indiana school districts received guidance from the Obama administration Friday that instructs public schools to treat transgender students based on their gender identity — including in restroom and locker rooms — or possibly lose federal education funds.

Indiana Superintendent of Public Instruction Glenda Ritz met the directive with praise. But Indiana Gov. Mike Pence, a socially-conservative Republican, criticized the guidelines saying, "the federal government has no business getting involved in issues of this nature."

The guidance by the U.S. Departments of Justice and Education follow federal officials receiving questions from school administrators on protections for transgender students. It was issued the same week that a legal fight escalated between North Carolina and the federal government over that state’s so-called "bathroom law," known as HB2. The controversial law requires people to use the restroom corresponding to the gender on their birth certificate.

Under the guidance, school districts are advised that gender identity and transgender status are covered under federal protections against sex discrimination. Schools must abide by those protections in order to receive federal funds.

“This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity,” the guidance states.

The directive doesn’t amount to new legal requirements. But it goes on to say “if sex-based harassment creates a hostile environment, the school must take prompt and effective steps to end the harassment, prevent its recurrence, and as appropriate, remedy its effects. A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment,” in violation of federal law.

Pence said such policies surrounding security and privacy of students should be "in the hands of Hoosier parents and local schools, not bureaucrats in Washington, D.C."

"I am confident that parents, teachers and administrators will continue to resolve these matters without federal mandates and in a manner that reflects the common sense and compassion of our state," Pence said in a statement.

Ritz, a Democrat, said she thinks “that all children deserve to learn in an environment that is safe and welcoming. Education is a civil right and no child can learn unless he or she feels safe.”

“In Indiana, we have already seen schools take steps to ensure that their students and staff feel safe regardless of race, religion, sex or gender identity,” Ritz said in a statement. “I will support their efforts, and will continue to ensure that all students have the opportunity to learn in a safe and welcoming environment.”

Guidance met with mixed reaction by schools, parents

Several Central Indiana school officials told IndyStar they had yet to receive the guidance or declined comment until they sought legal counsel.

Indianapolis Public Schools released a statement that the district believes “no student should feel unwelcome on their own campus."

“As gender identity can be a delicate topic for students, families and staff, district leadership will continue thoughtful efforts to serve our students with sensitivity and fairness,” according to the district’s statement. “We currently implement solutions on a case-by-case basis to ensure the rights and safety of all students are protected, and we will tailor our efforts as needed to address the directives of the U.S. Department of Education.”

On Friday, parents had mixed reaction to the news.

Jerry Gray, who has an eighth-grader at Harshman Middle School, said the guidance amounts to the Obama administration overstepping its power.

"My child is going to be pulled out of public school if the school board goes through with that proposal. It's indecent," Gray said.

Fellow Harshman parent, Angela Black, said she's concerned for the safety of her children.

"How many people can say that they are transgender and are really not and then they can go into the bathrooms with the girls," Black said.

Yet, another IPS parent said she supports the guidance because she's for "inclusion."

"I just think whatever makes people more comfortable is better," Dana Williams said.

Ann Bruder, who has children in Carmel Clay Schools, said she agrees with the federal government's action.

"There's been zero threat from the transgender community," Bruder said. "Life is difficult enough for middle school age kids."

While the guidance doesn't have the force of law, it tells schools how the Department of Education intends to enforce Title IX — a federal law that prohibits sex discrimination in school programs and activities — in the future. And because Title IX is directly tied to federal education funding, the guidance carries an implied threat: follow the federal guidelines or risk losing those funds.

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.

Indiana receives more than $1.5 billion in federal funding for various education programs. Another $2.4 billion in federal funds is spent on student loans.

Any threat of funding loss would be directed at the noncompliant school, not the entire state.

But the denial of federal funds appears to be a recourse the federal government is reluctant to take. Addressing the North Carolina law on Thursday, White House press secretary Josh Earnest said the Obama administration "will not take action to withhold funding while this enforcement action is playing out in the courts."

The campaign manager for Freedom Indiana, a grassroots organization that advocates for lesbian, gay, bisexual and transgender rights, said she was happy to see the protections formalized.

"I don't think it will make a big difference in day-to-day operations, other than it will make kids feel safer in school, which is something I think we all want," said Chris Paulsen of Freedom Indiana.

But Micah Clark, executive director of the American Family Association of Indiana, blasted the guidance, saying the state should defy it and decline federal education funds.

“The federal government has no business inserting itself into every local school and trampling the safety and privacy of children in restrooms and locker rooms,” Clark said in an email to IndyStar. “Parents have every reason to be outraged at this dangerous and divisive move when our nation is facing ongoing monumental economic and national security problems.”

'A difficult balance'

Most Indiana school districts handle issues dealing with restroom and locker room use on a “case-by-case basis,” said Lisa Tanselle, general counsel with the Indiana School Boards Association. She expects that practice to still continue.

“I think our schools will locally do what they think is best for their students, taking into consideration the guidance,” Tanselle said. “And that is consistent with what they have been doing.”

Center Grove Schools Superintendent Rich Arkanoff said the district has “bylaws and policies in place to maintain an education and work environment that is free from any form of discrimination or harassment for our students and our staff. We plan to carefully review the Department of Justice letter and determine whether any policy adjustments are necessary.”

Wayne Township schools spokeswoman Mary Lang said the district plans to study the guidance. But "it is our district policy that decisions regarding students and staff are made free from consideration of factors such as gender identification," she said.

One Indiana school district has already bolstered its protections. This week a Southern Indiana school district approved protections for transgender students and employees. The New Albany-Floyd County Consolidated Schools board added the language to its district handbook.

Transgender rights has become more of a “hot-button issue" for schools, said Suzanne Eckes, an Indiana University professor and former public school teacher. It's an issue difficult to navigate for school leaders because of a lack of court rulings on the matter.

She’s had educators tell her they believe restricting bathroom use to a person’s birth sex is discrimination, but at the same time, they work in conservative communities.

“It’s a difficult balance for principals because they’re trying to balance the rights of transgender students — civil rights — at the same time trying to balance privacy rights of the rest of the student body,” Eckes said.

The guidance advises school officials to follow the gender a student identifies with in cases where a student or a parent notifies them of a gender identity that differs from school records. The guidance also advises students shouldn't be required to provide medical records regarding gender identity — because those might be difficult to obtain, according to the guidance.

The guidance also speaks of athletic teams. Federal officials advise a school shouldn’t adopt requirements relying on “overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e. the same gender identity) or others’ discomfort with transgender students.”

During the past legislative session, proposals dealing with bathroom access failed to move forward at the Indiana General Assembly.

One of those bills that addressed broader issues with gay and transgender rights would have allowed school districts, employers and businesses to set their own policies for bathrooms and dress codes. Another failed bill would have made it a misdemeanor for a woman to knowingly enter a men’s bathroom or locker room, or for a man to go into one marked for women.

IndyStar reporter Stephanie Wang, IndyStar Washington correspondent Maureen Groppe, USA Today and The Associated Press contributed to this article.

Call IndyStar reporter Chelsea Schneider at (317) 444-6077. Follow her on Twitter: @IndyStarChelsea. 

Indiana school district OKs transgender protections

North Carolina's bathroom law is discriminatory, Justice Dept. says