Rep. Andy Harris is encouraging local school districts to ignore Obama administration guidance requiring them to allow transgender students to use bathrooms that fit their gender identity — even as a growing number of schools in the state are embracing the idea.
In a letter to school systems in his district that was later distributed statewide, Harris wrote that the administration "would not have the last word on this issue" and that the administration overstepped its authority in May when it required schools to honor bathroom requests of transgender students.
"We want the superintendents to know that there is not unanimity coming from the federal government — that the branches disagree," the Baltimore County Republican said in an interview Tuesday. "The superintendents need to know that the House is likely to take some action on this."
But while the federal guidance has stoked partisan divisions and concern from some parents, many districts in Maryland have been moving ahead with such policies for months. That's because the state Department of Education issued similar guidance — to far less fanfare — in October.
A high-profile decision in April from the 4th Circuit Court of Appeals, meanwhile, indicated that districts that do not allow students to access bathrooms consistent with their gender identity — regardless of what sex is printed on their birth certificate — are opening themselves to lawsuits.
Several school systems within Harris' district, including Baltimore, Harford and Talbot counties, have said they will honor the federal guidance. Others, including Carroll, Dorchester and Queen Anne's counties, say they are reviewing their policies.
No district has said it will ignore the guidance.
North Carolina passed a law in March requiring transgender people to use restrooms in public buildings and schools that match their sex at birth, triggering an emotional national debate.
But so far in Maryland, that debate has been muted.
Robert Mosier, a spokesman for Anne Arundel County schools, said the federal guidance "didn't change a single thing" about their policies.
If a student identifies as a gender different than the one he or she was born with, Mosier said, school officials will talk to the student and his or her parents.
"We would work with the student and his or her family and proceed forward," he said. "So if the family, for example, says we want our child to use the bathroom with which our child identifies, then that is what we do."
The Carroll County school system has been more reluctant to embrace the policy.
Carroll County Superintendent Stephen H. Guthrie last month called the guidance "a total surprise to me."
On Tuesday, a spokeswoman for the district said Guthrie will address the issue at the next school board meeting, on June 15. She declined to offer additional details about the district's position.
Carroll County Commissioner Richard Rothschild said he has heard from parents who are angry about the federal guidance, and he called on Congress to address the issue.
"I will use every legal option at my disposal to prevent the uni-sexification of our local bathrooms and locker rooms," the Republican said. "The county believes that this issue is still being adjudicated and we're in a wait-and-see position based on conflicting information we receive based on who you're talking to."
Harris, an anesthesiologist who is the only Republican in Maryland's congressional delegation, entered the fray Thursday with a letter urging school districts "to continue to respect a student's right to privacy — including girls that do not wish to undress in the presence of biological males."
Harris wrote that officials could "be secure in my support of you and your right to set policy for your schools."
Asked how he could support districts that choose to ignore the policy, Harris said House Republicans are eager to pass legislation to prohibit the U.S. Department of Education from enforcing its policy.
Harris is a member of the House Appropriations Committee, where members could easily write such language into legislation.
But it is not clear that proposal would have any chance of approval, particularly in a presidential election year when lawmakers are struggling to pass far less controversial legislation.
And if that measure never materializes, then school districts that flout the federal guidance could face years of litigation.
In a case involving a transgender high school student in Virginia who was born a girl and was later prohibited from using the boys' bathroom, the 4th Circuit in April found that federal law was vague and that the Obama administration had authority to clarify it.
The case, which several school districts in Maryland have said influenced their decisions to embrace federal guidance, is now pending in District Court.
Advocates for gay, lesbian and transgender people said that any school district caught off guard by the guidance last month was not been paying attention to federal education policy. The U.S. Department of Education issued guidance as far back as January 2015 in which officials wrote that "a school generally must treat transgender students consistent with their gender identity."
"I think it's unfortunate that Representative Harris is taking this position, especially when Maryland, as a matter of public policy, has enacted protections from discrimination on the basis of gender identity," said Jer Welter, deputy director of FreeState Legal. The Baltimore-based nonprofit offers legal services to low-income lesbian, gay, bisexual and transgender residents.
David Cox, president of the Public School Superintendents' Association of Maryland, said the state's school leaders were planning to discuss the issue at their next meeting later this week.
Cox, the superintendent of Allegany County schools, said many local officials learned of the details of the guidance not from the Obama administration but rather from phone calls from parents.
Mychael Dickerson, a spokesman for Baltimore County schools, said a number of students who have asked to use a separate bathroom have been accommodated. He said the district is not aware of any transgender student who has asked to use a different bathroom than the gender he or she was born with.
Henry Wagner, superintendent of Dorchester County Public Schools, said officials there are waiting for more guidance form the state. The school board has not taken a formal position on the guidance, Wagner said.
"I just don't have an answer for you right now," he said. "It's very much up in the air. This whole matter is up in the air. There is no consensus nationally, at the state level or anywhere else. That's because you're trying to uphold the rights and feelings of those who see things differently."
Baltimore Sun reporter Jonathan Capriel contributed to this report.