Governor Malloy Issues Executive Order On Transgender Students’ Use of Bathrooms in Public Schools

On Wednesday, President Trump’s administration decided to rescind, pending further review, the Obama administration’s federal guidance that requires transgender students receive access to the restrooms and locker rooms of their chosen gender identity. In response, Governor Malloy yesterday issued his own Executive Order that essentially renders the President’s action void in Connecticut and requires Connecticut’s public schools to continue to permit such access. At the same time, the Governor and Commissioner of Education Dianna Wentzell issued a Memorandum to Superintendents dismissing President Trump’s actions and directing that Connecticut schools continue to adhere to President Obama’s prior guidance.

In May 2016, the Obama administration issued a “Dear Colleague Letter” from the U.S. Departments of Justice and Education that stated public schools who receive federal funds must grant transgender students access to restrooms and locker rooms consistent with their gender identities. The guidance was based on the Obama administration’s interpretation of Title IX, the federal law prohibiting sex discrimination in public school environments. While schools could restrict access to bathrooms based upon a student’s sex, i.e. have girls’ rooms and boys’ rooms, they had to permit transgender students access to the bathroom that matched their identity.  Moreover, schools could not force transgender students to use gender-neutral bathrooms that other students were not required to use. This guidance sparked widely publicized litigation in various parts of the country and has been a topic of several posts written by our firm’s attorneys.

On Wednesday, the Trump administration rescinded the prior guidance. According to the letter issued Wednesday by the Departments of Justice and Education, the prior guidance lacked an extensive legal analysis of Title IX. Thus, the Trump administration rescinded that guidance in order to more completely review the legal issues at stake.  At the same time, it gave note to the role of individual states in legislating educational policy surrounding this issue.

In 2011, the Connecticut legislature enacted Public Act 11-55, which added “gender identity and expression” to the classes protected by Connecticut’s anti-discrimination laws. While Public Act 11-55 contains no specific language requiring transgender students receive access to the facilities that match their gender identity, Governor Malloy’s Executive Order contains zero ambiguities about this issue and confirms that President Obama’s guidance will continue to be the rule in Connecticut. The Executive Order further requires the State Board of Education and the Commission on Human Rights and Opportunities to develop and present guidelines to local boards of education on policies that grant students’ access to facilities in a manner consistent with one’s gender identity or expression.

In 2012, the Safe Schools Coalition issued guidance that attempted to explain a school district’s obligations under Public Act 11-55. This guidance provides that a school district in Connecticut should offer access to facilities (including bathrooms and locker rooms) consistent with that student’s gender identity. While it may offer a gender-neutral bathroom that is open to ALL students, it cannot force students to use a facility that conflicts with their gender identity.  The guidance also suggested that a school could offer reasonable privacy alternatives to those feeling uncomfortable changing in locker rooms.  In light of the Executive Order, it is assumed that any new Connecticut guidelines will likely be consistent with the Safe Schools Coalition’s prior guidance.

If you have any questions, please contact a member of our School Law practice.