Historically, a person's gender was determined at birth. But in recent years, some have argued that their "gender identity" is different from their gender at birth. For example, while born a biological male, a person comes to identify with the female gender. Such persons are commonly referred to as "transgender” individuals. Some of them have surgery or hormonal therapy to change some of their physical characteristics, but many do not.
On May 13, 2016, the Civil Rights Division of the US Department of Justice (DOJ) issued a letter advising schools receiving federal financial assistance of their obligations under a federal law (Title IX of the Education Amendments of 1972) regarding transgender students. The letter warns schools that "they have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students," and that a failure to do so may lead to loss of federal financial assistance under federal programs.
The letter addresses restrooms and locker rooms as follows: "A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school 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. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy."
The letter affirms that "in this letter, the term schools refers to recipients of federal financial assistance at all educational levels, including school districts, colleges, and universities. 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.” (emphasis added)
How churches are legally affected
While the DOJ letter does not apply to churches, it has raised a concern among many church leaders regarding the response by churches to transgender individuals who have a gender identity different from their biological sex at birth. For example, is a church legally required to:
- Allow persons to use restrooms according to their gender identity even if different from their sex at birth?
- Allow transsexuals who have received surgical or hormonal treatments to alter certain sexual characteristics to use restrooms according to their gender identity?
- Allow persons to share hotel rooms on church-organized trips according to their gender identity rather than their sex at birth?
- Refrain from discriminating in employment decisions on the basis of gender identity?
The answers to these questions are complicated by two factors. First, the courts have yet to address these issues definitively. And second, any answer will depend on the terms in a veritable patchwork quilt of hundreds of local, state, and federal laws forbidding discrimination by places of “public accommodation.” This makes it impossible to generalize.