The U.S. Department of Justice and Department of Education issued an advisory letter last month that said schools receiving Title IX funding should treat an individual according to their “internal sense of gender,” thus launching the first salvo in the new gender identity bathroom/locker room debate.

In response, eleven states filed suit against President Obama’s Administration arguing the letter is an overreach of executive authority.  The lawsuit was filed May 25 in Texas. Joining the suit on behalf of our state was Attorney General Brad Schimel, who spoke at the WCRIS Leadership Conference in February.

It is important for WCRIS administrators to know that private schools are not covered by the U.S. DOJ/DOE letter and directives because they are not recipients of federal funds, according to our friends at the Council for American Private Education (CAPE).

WCRIS is a member of CAPE, which has been advocating for WCRIS schools for decades. CAPE knows and understands the nuances of federal education funding quite well.

It’s important for private school leaders to understand that private schools are not recipients of public funds just because they participate in federal education programs, says CAPE Executive Director Joe McTighe

“As enforced by USDE, Title IX only applies to institutions that receive federal financial assistance from the U.S. DOE. Private elementary and secondary schools whose students or teachers receive equitable services under federal education programs are not considered to be ‘recipients of federal financial assistance,’ ” McTighe notes.

As for participation in the Free and Reduced Price lunch program from the U.S. Department of Agriculture, WCRIS Executive Director Sharon Schmeling said, “The jury is still out on whether participation in the federal nutrition program constitutes receipt of federal funds.”

Further, McTighe said, “Even if the school were a recipient of federal education aid, footnote 1 of the U.S. DOE letter on transgender students states: ‘An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization.’ ”

CAPE, which has affiliates in 35 states and territories including WCRIS, will continue to monitor this situation and advocate on behalf of our schools to maintain their religious identity and comply with the tenets of their beliefs.

Gender Identity and Bathroom Use: Key Points

While private schools are not covered by the Obama Administration’s guidance on the rights of transgender students, the issue is prompting lots of discussion. Here are some key points to help you along the way, as people turn to you as an education leader:

  1. Impact on private schools: Private schools are not covered because they are not recipients of federal funds, according to definitions long-set and agreed-on across the United States (see detailed article above).
  2. Impact on student population: There is no official calculation identifying the number of transgendered people or students in the United States. The Williams Institute at the University of California-Los Angeles has estimated that 0.3% of U.S. adults are transgender, according to Education Week.
  3. Impact on the condition of education: While time, energy and resources are being expended to discuss and litigate this issue, 64% of U.S. fourth graders score below proficient on reading (2015 NAEP.)
  4. Impact on education policy: This issue will not be decided by the Obama Administration nor by state legislatures nor governors. Because the issue is based on an interpretation of a federal law — Title IX of the Education Amendments Act of 1972 that prohibits sex discrimination — the federal courts have to make the ultimate decision. There are cases being litigated in federal courts in Illinois and Virginia. If two appeals courts differ on the interpretation, the issue goes to the U.S. Supreme Court. Or, a new president could change the interpretation.
Moving Forward: WCRIS Advises Proceeding with Caution

WCRIS school leaders should proceed cautiously in responding to these emerging issues, advises WCRIS Executive Director Sharon Schmeling.

“The bottom line is that our schools are not covered by the Obama guidance on gender identity and bathroom usage because our schools do not receive federal funds, ” she said.

“While it is tempting to wade into these debates by issuing new policies and letters to parents, private schools may be better served by waiting until a specific situation arises and addressing it in the full context of the details at hand,” Schmeling said.

“There are folks just waiting to take our well-intentioned efforts out of context, to create an internet sensation vilifying our schools and traditional values. We need to work together thoughtfully to prevent that,” she said.

Schmeling advises that principals consult with their private school superintendent or jurisdictional leader before developing policies or communications to parents in response to this emerging issue. Schools that don’t have such a contact should call on WCRIS.

“None of our schools has to navigate these choppy waters alone. We have a lot of collective wisdom and access to resources that can mediate these uncertainties. Don’t be afraid to use them.”