The Obama administration’s guidance to the nation’s school districts about bathroom use by transgender students “is not an enforcement action,” and instead is just “advice,” White House spokesman Josh Earnest clarified hours after the Education and Justice departments circulated the memo.
The guidance warns: “A school’s failure to treat students consistently with their gender identity may create or contribute to a hostile environment in violation of Title IX,” referring to the 1972 law banning sex discrimination in public schools. It also implies that schools could lose federal funding if they don’t comply.
But Earnest said that doesn’t impose any new requirements on schools.
“There’s no additional requirement under the applicable law that is being imposed on schools, despite the political opponents of the administration,” Earnest said. “There is a strong desire on the part of some politicians to try and score some cheap political points by presenting a solution to a problem that they can’t prove exists.”
“And that’s why the guidance that we have put forward includes tangible, specific suggestions for how that can be achieved,” he added.
Earnest stressed that the Education Department was responding to requests from school districts and administrators across the country about how they should handle bathroom use by transgender students.
The federal government is offering “practical, real-world advice,” Earnest said. “That is the practical offering that we have put forward here.”
No student is forced to use a shared facility, for example, he said. And school districts can offer alternate facilities or make adjustments to current ones, such as adding curtains to showers in school locker rooms.
The guidance seeks to offer “solutions that protect the safety and dignity of every single student in the school,” he said.
Earnest also took a swipe at Texas Lt. Gov. Dan Patrick, who called the guidance “blackmail” because noncompliance could lead to lawsuits or loss of federal funding.
“This underscores the risk of electing a right-wing radio host to a state-wide elected office,” Earnest retorted, responding to Patrick’s previous career as a Houston radio commentator.
Earnest asked if Patrick was suggesting “that it would be practical to station a law enforcement officer outside of every public bathroom in an education facility; and check people’s birth certificates on the way in?” Earnest asked. “That doesn’t sound like small government to me. It certainly sounds like a government intrusion to me. But again, that is what is hard to sift through with” the criticism, he said.
Earnest also argued that schools shouldn’t see the guidance as a threat to their funding.
“No, they should not view it that way,” when asked if school administrators should consider it a threat. “They should view it as guidance to a very straight-forward problem.”
Earnest denied that the guidance is a response to North Carolina’s controversial law on transgender bathroom use. The guidance is strictly guidance offered in response to requests from school districts for advice on how to handle transgender bathroom use, Earnest said.
“We’ve been quite clear about the need to keep enforcement actions clear of any sort of political interference,” Earnest said. “This is not an enforcement action.”
