Your Rights Have Not Changed: Students Are Allowed to Use the Bathroom That Aligns with Their Gender Identity

From President Trump to local politicians and school boards, some public officials seem intensely focused on which bathrooms New York students are using.

Here in New York, the law is clear. Students have the right to be out at school and to use the bathroom that aligns with their gender identity. Public officials are using transphobic fearmongering to score cheap political points. Their actions are toothless, but they are also ignorant, reckless, and harmful.

With the law on our side, the NYCLU, the City of New York, the State Department of Education and others are fighting back against these cruel attacks on trans students’ rights.

Trump’s Executive Orders Cannot Change New York State Law

Shortly after he took office, Trump issued an executive order that attempted to erase the existence of trans, non-binary and gender nonconforming people by proclaiming that the United States will only recognize two sexes, male and female, which the order calls “not changeable.”

Another executive order quickly followed, this one narrowly focused on excluding trans women and girls from sports. The order claims allowing trans women and girls to play on teams that align with their gender identity somehow denies their cis teammates of their Title IX-protected right to play. This novel interpretation is a view no Federal Circuit Court has endorsed. In fact, multiple Federal Circuit Courts have held exactly the opposite view – that denying trans students access to the bathroom that aligns with their gender identity violates Title IX.

Trump’s second executive order also threatens to withhold federal funding from educational programs that don’t exclude trans women and girls from participating in athletics.

The New York State Department of Education and the Office of the New York Attorney General quickly responded with a statement clarifying that these executive orders do not impact the rights of transgender students in the state’s public schools. All of New York’s students have the right to use bathrooms and locker rooms and to play on athletic teams without being interrogated about their gender identity or their assigned sex at birth.

That’s because New York’s Human Rights Law prohibits discrimination based on gender identity or expression at most educational institutions, including public schools, public colleges and universities, and non-religious private schools. In addition, the state’s Dignity for All Students Act (DASA) protects students from harassment, bullying and discrimination on the basis of gender identity or expression. Students cannot be kept out of school activities – including athletics – because of who they are.

Trump’s Attempt to Pull Millions in School Funding

Despite a lack of legal support for his theory regarding Title IX, Trump is attempting to follow through on his threat to pull funding from school districts who refuse to bend to his baseless, bigoted demands.

In September, the Trump administration wrote a letter to New York City’s Department of Education and two other large school districts to express “concern” over trans-inclusive policies.

Specifically, the letter called out the city’s long-standing policy of allowing students to use bathrooms and locker rooms that best align with their gender identity, as well as to participate in sports teams according to their gender. The Trump administration also threatened to withhold $35 million dollars in federal funding for magnet schools if the city didn’t start forcing students to use the bathroom correlated with the sex they were assigned at birth.

Curiously, the day after the letter was sent, Mayor Adams suddenly decided to weigh in, expressing personal discomfort with school bathroom policies that have been in place without incident in New York City schools for years and that predate his tenure.

While the mayor chose to echo Trump’s discriminatory rhetoric, other local officials continued to support trans students. When the city refused to violate state law by adopting discriminatory bathroom polices, the Trump administration announced that it would proceed with revoking the funding, which the city’s legal counsel said would impact 19 schools and approximately 7,700 students.

New York City is now suing the federal government, claiming that the process they used to remove the funding was not legal. This city is also defending its bathroom policy, arguing that it does not violate Title IX, and that state law protects trans students from discrimination.

The Fight Against Bans on Long Island

Emboldened by Trump’s bigotry, some public officials on Long Island saw an opportunity to further their own anti-trans agenda.

In Nassau County – where the NYCLU is challenging an anti-trans sports ban – the Massapequa School District adopted a policy requiring students to use bathrooms and locker rooms that correspond with their sex assigned at birth. Parroting the Trump administration’s language, the district argues it is enacting the policy to comply with Title IX, and to prevent the loss of federal funding.

The policy discriminates against students based on their gender identity, and is illegal under New York’s antidiscrimination laws, including the Human Rights Law and the Dignity for All Students Act. The NYCLU filed an appeal with State Commissioner of Education Betty Rosa asking her to prevent the Massapequa School District from enacting the policy.

In response, Rosa swiftly blocked the school district from implementing the anti-trans facilities policy. “State law and guidance on the rights of transgender individuals is unequivocal,” she wrote.

Just days after the state education department blocked Massapequa’s policy, the board of Locust Valley—another Nassau County school district represented by the same private attorneys as Massapequa—approved a policy that is almost identical – and just as illegal. The New York State Education Department has told Locust Valley that they cannot enforce this policy, and the district is now part of the NYCLU’s appeal. Both districts will be held to the final decision, which will set a precedent for any other districts considering similar moves.

The Massapequa School District is now suing the New York State Education Department and the parents of the transgender student who filed the NYSED appeal. This baseless lawsuit shows that the Massapequa school board is more interested in bullying students and families and filing frivolous litigation than doing the job that voters elected them to do: ensuring a sound and equitable education for all students. The district claims that by preventing it from enacting the bathroom policy, the state is forcing it to violate federal law.

But there is no federal law requiring schools to discriminate against trans students – only Trump’s executive orders, which do not carry the weight of law.

He may have the bully pulpit at the moment, but New York’s school districts are obligated to follow state law, not to further Trump’s hateful agenda.

The rights of trans students in New York have not changed. Our laws protect students from discrimination based on their gender identity, and all students have the same rights to use school bathrooms and locker rooms and to play sports.