clock menu more-arrow no yes

Filed under:

Herbert slams Obama 'bathroom' directive as federal overreach

FILE — Utah Governor Gary R. Herbert speaks as he and fellow gubernatorial candidate, Jonathan Johnson debate at Little America Hotel in Salty Lake City Monday, April 11, 2016. Herbert challenged a directive from the Obama administration telling public sc
FILE — Utah Governor Gary R. Herbert speaks as he and fellow gubernatorial candidate, Jonathan Johnson debate at Little America Hotel in Salty Lake City Monday, April 11, 2016. Herbert challenged a directive from the Obama administration telling public schools to allow transgender students to use bathrooms that match their gender identity.
Scott G Winterton, Deseret News

SALT LAKE CITY — Gov. Gary Herbert, in a statement released Friday, challenged a directive from the Obama administration telling public schools to allow transgender students to use bathrooms that match their gender identity.

The sweeping declaration — which also said that school districts must integrate transgender students into locker rooms, athletic teams and other facilities consistent with their gender identity — was celebrated as a civil rights victory by some and criticized as an unjustifiable federal incursion into local matters by others.

Herbert made his position clear Friday, calling the directive "one of the most egregious examples of federal overreach I have ever witnessed."

"Unfortunately, this is exactly what I have come to expect from the Obama administration," Herbert said in his statement. "If we have to fight this order, we will not hesitate to do so.”

The guidance from the Education and Justice departments is not legally binding, but schools that do not comply may face lawsuits and risk losing federal funding.

Federal funds currently make up 11 percent — or $482.4 million — of the state's nearly $4.3 billion education budget.

Stan Lockhart, a state school board member, said he hopes to find a compromise but would be willing to forgo federal funds "if we can't find any other way to create a safe environment for our kids."

"We need as a state to stand up as a sovereign entity and tell the federal government to go jump in the lake sometimes," Lockhart said.

He added: "I can tell you, the way I feel this morning, I am telling them to go jump in the lake."

In a statement released later, Utah State Board of Education chairman David Crandall said Utah schools "are not required or expected to take any action” to comply with the Obama administration's sweeping guidance. The Utah State Board of Education will release more guidance to school districts after talking with attorneys, according to spokeswoman Emilie Wheeler.

The directive

The directive was sent to every public school district on Friday and accompanied by 25 pages of additional guidance. It has launched the country deeper into a complex debate on gender identity, civil rights and federal authority.

Cindy Davis, a parent from American Fork, said the effort to protect one group of children has caused safety concerns for others.

Her children, who are in first and second grade, "are not going to be comfortable going into a restroom where there's boys and girls up-and-downing their drawers," Davis said.

"In my opinion, that's just not OK," she said. "I feel like in order to preserve someone else's right, my rights are being taken into question."

For Anna Turkel, a mother of a 7-year-old boy who does not conform to traditional gender stereotypes, the letter is a glimmer of hope. Turkel said Kaiden was still a toddler when he began gravitating toward sparkly pink clothes and My Little Pony — and showing complete indifference toward the monster trucks and soccer balls that she pushed at him.

Turkel, who lives in Washington Terrace, said Kaiden started getting bullied as soon as he started school.

Going to the boy’s bathroom was a particular terror. In one incident, several boys cornered Kaiden and tried to take off his pants to see if he was wearing girl or boy underwear, she said.

Administrators eventually let Kaiden use a single-occupant bathroom in the main office, but bullies continued to follow him and physically attack him, she said. When Kaiden started throwing up every morning before school, Turkel pulled him out.

She still holds out hope that Kaiden may be able to return to public school one day but said administrators “weren't able to protect him even with it being right under their nose.”

"He deserves the same education, he deserves to be comfortable there, he deserves to be able to go to the bathroom and feel safe," Turkel said.

Obama's role

The Obama administration has framed the debate over transgender rights as a civil rights issue not unlike segregation or same-sex marriage.

The Education and Justice departments issued their joint directive under a law known as Title IX, which prohibits schools that receive federal money from discriminating based on a student’s sex. In the letter, the federal government says it is treating a student’s gender identity as the student’s sex.

William Duncan, the director of The Center for Family and Society at the conservative Sutherland Institute, said the Obama administration has gone too far in its interpretation.

Not until “very, very recently did anyone think (Title IX) could possibly have implications for restroom policies and federal-state relationships and school funding,” Duncan said. "This is really an issue where Congress needs to weigh in."

University of Utah law professor Clifford Rosky sees it differently.

Rosky, who was one of the primary authors of Utah's anti-discrimination law, said schools have the choice not to take federal funds.

“If they do, then they have to comply with the Civil Rights Act,” he said. “It’s not federal overreach for the federal government to have some say in how federal money is spent... This is just the federal government deciding how to spend its money.”

Many of the key issues at play in this directive are also being questioned in the legal battle between North Carolina and the Justice Department, which have sued each other over a state law that restricts access to bathrooms for transgender people.

Many school districts and states will be watching to see how that case turns out, Rosky said.

Contributing: Peter Samore

Email: dchen@deseretnews.com

Twitter: DaphneChen_