Federal bathroom directive highlights conflicting HB2 compliance in NC schools | Charlotte Observer

Political conflict over bathroom rights in North Carolina has created a patchwork of school responses across the state – a point revealed Friday as education leaders reacted to a new federal directive that transgender students must be allowed to use bathrooms according to their gender identity.

North Carolina education Superintendent June Atkinson told McClatchy the state’s public schools are already following federal equality guidelines – which were handed down to districts across the country Friday, spelling out what’s required for accommodating transgender students.

But, interviews with local education officials about how they’ll handle new federal guidance indicate transgender students may currently have different bathroom rights in practice across North Carolina, depending on where they live.

For example, in Wake County schools, some transgender students are able to use the bathroom that matches their gender identity – despite North Carolina’s bathroom law, HB2, banning such a practice. Durham Public Schools work with families of transgender students to find private facilities for use, such as a staff bathroom or single-occupancy restroom.

Charlotte-Mecklenburg schools say they haven’t changed their bathroom policies since HB2 passed.

Other North Carolina districts contacted Friday said school leaders and attorneys will refresh conversations on the topic, in light of new federal input.

The new guidance – contained in a letter from federal justice department and education officials – tells schools they “may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

LGBT advocates billed the move as historic though the letter does not mandate any actions and is considered guidance only for school officials. However, schools that do not abide could face a loss of federal aid, according to federal officials.

The move drew sharp criticism from Republican leaders Friday morning.

The letter does not mention North Carolina specifically but some interpreted the move as a rebuke of the state’s controversial HB2 law – enacted in March to overturn a city ordinance in Charlotte that sought to protect LGBT rights. The federal Justice Department is suing the state, alleging HB2 is a violation of civil rights.

Still, the federal directive won’t change day-to-day bathroom use in North Carolina’s public schools, according to Atkinson, North Carolina’s top education official.

In a phone interview with McClatchy late Thursday night, Atkinson said public schools statewide were already following bathroom use practices expected by the federal education department.

North Carolina’s anti-discrimination law that excludes LGBT people is subject to several lawsuits and the state legislation details no sanctions or direction for enforcement, Atkinson said. HB2, she said, puts schools in direct conflict with the Obama administration’s expressed standards.

Atkinson, a Democrat, mentioned another bill floated in North Carolina that would clamp down on school bullying and promote safety, including gender identity as a protected class.

“It’s a very frustrating time for us in the state, especially those who are in education,” she said.

Later, on Friday, Atkinson and N.C. State Board of Education Chairman Bill Cobey released a news statement saying they support “legal protections afforded to all public school students and the safety of each child.”

N.C. districts handle HB2 differently

In Charlotte, it appears schools haven’t changed anything due to HB2.

Charlotte-Mecklenburg Schools spokeswoman Renee McCoy said Friday that the district meets with the families of any students with special needs – including issues related to gender identity – to work out appropriate learning plans for the children.

Charlotte schools, McCoy said, comply with federal Title IX, which prohibits discrimination in any education program and which the Obama administration now says extends to bathroom use.

McCoy said the school system has received no guidance from the state government about HB2. Nor has the school system, she said, heard from federal officials since the legal fight over the issue escalated this week.

School officials in Salisbury responded Friday in a way that demonstrates how districts are currently torn over state law and federal guidelines. A statement from spokeswoman Rita Foil appears to indicate the district intends to comply with HB2 while also providing “all our students with a welcoming, supportive school environment.”

School districts across the state appeared to be choosing their words carefully given the dueling state and federal bathroom directives.

"We will work with our transgender students in compliance with state law and in a way that considers the privacy of all our students," the statement from Rowan-Salisburg read.

Two local districts have already passed school board resolutions publicly condemning HB2. Durham Public Schools and Chapel Hill-Carrboro oppose HB2’s mandates for schools.

The Durham Board of Education is “vehemently opposed” to HB2, said district spokeswoman Chrissy Deal. She added that the new federal input will require district officials “to have some new conversations.”

Even before HB2 passed, some North Carolina schools were more likely mirroring the new state law’s requirement to require transgender students to use single-person restrooms instead of multi-stall school bathrooms that match their gender identity.

The Chapel Hill-Carrboro school system, located in one of the most Democratic-leaning parts of the state, created single-stall, gender-neutral restrooms for transgender students to use.

Jeff Nash, a spokesman for Chapel Hill-Carrboro schools, said Friday the district needs to review the federal guidance to see if changes should be made. Chapel Hill, like the state’s other school districts, are caught between conflicting federal and state rules.

“I can’t remember in 25 years having a situation like this,” Nash said. “At the end of the day, we just want to make sure all our students are safe and protected. Our top priority is the safety of our students.”

The Wake County school system comes closer than many North Carolina school systems in allowing some transgender students use to the restroom matching their gender identity. But Wake – which is the largest district in the state – doesn’t go as far as the new federal guidelines seem to require because some transgender students there are still directed to use staff restrooms.

And, Wake schools won’t grant transgender bathroom requests unless parents are supportive, officials said.

Wake school officials said Friday that their goal is to provide a respectful, safe and supportive environment for all students. For now, student requests are handled on a case-by-case basis.

“News and developments about the topic of transgender students have changed almost weekly and sometimes even more frequently since March,” Wake school officials said in a statement. “Our attorneys are reviewing the most recent developments related to HB2 and federal guidance.”

The apparent confusion among school administrators is why federal officials weighed in specifically about bathrooms, White House Press Secretary Josh Earnest said Friday. The guidance has been in the works "for years," even if the situation is "relatively new to our political debate,” he said.

Earnest didn't mention the North Carolina specifically, but said school administrators "can't rely on political arguments that are framed as a solution to a problem that nobody can prove exists."

School leaders, he said, are “not interested in a political argument, they're actually interested in practical suggestions about how they confront this challenge that they face every day.”

The guidance explained Friday by federal officials does not add new education or service requirements and it doesn't require any student to use shared facilities when schools make alternate arrangements.

Pittenger: Obama acting like ‘monarch’

In response, U.S. Rep. Robert Pittenger, R-N.C., blasted Obama’s administration, accusing the president of creating “new laws based on how he’s feeling today.”

“President Obama seems to believe he is a monarch, ruling through edict like kings of old, instead of governing responsibly as one part of an accountable, carefully divided system of government,” Pittenger said to McClatchy in a statement.

The Charlotte-area congressman said he was concerned about the government’s separation of powers over the issue.

“I’m actively engaged with colleagues in exploring reasonable options to restrict the ability of the executive branch to bully a state or local government. Our Founding Fathers gave us a system for changing or updating laws. It involves Congress, not royal decree,” Pittenger said.

Presumptive GOP presidential nominee Donald Trump also weighed in on the latest development in North Carolina’s fight against the federal government, saying in a round of TV interviews Friday morning that he thought the issue should be decided by the states.

Asked on “Fox & Friends” about whether boys should be able to use the girls’ bathrooms, he called it a “new issue” and said he didn’t yet have an opinion. “Right now I would just like the states to make that decision.”

LGBT equality advocates praised the White House’s moves Friday as well as the administration’s 25-page document sent to school across the country describing accommodation policies like installing privacy curtains or allowing transgender students to change in bathroom stalls.

“These groundbreaking guidelines not only underscore the Obama administration’s position that discriminating against transgender students is flat-out against the law, but they provide public school districts with needed and specific guidance guaranteeing that transgender students should be using facilities consistent with their gender identity,” said Human Rights Campaign President Chad Griffin.

Charlotte Observer reporter Michael Gordon, McClatchy’s Lesley Clark and Anita Kumar, and The News and Observer’s Keung Hui and Lynn Bonner contributed to this article.