Transgender Student Issues – The FEDs Speak, But Is It Really News In Connecticut?

kids-hopsctoch-playground_72DPI_RGBOn May 13, 2016, with much fanfare, the United States Department of Justice and the United States Department of Education jointly issued a “Dear Colleague Letter” [“DCL”] in order to provide guidance for school districts with respect to transgender students; the Departments also issued a document entitled “Samples of Policies and Emerging Practices for Supporting Transgender Students.”  Briefly, Title IX of the Education Amendments of 1972 prohibits discrimination based upon gender in education programs receiving any federal financial support.  The DCL confirms that the Departments interpret Title IX’s prohibition against gender discrimination to include discrimination based upon a student’s transgender status.  The DCL reiterated that school districts have an obligation to provide a safe and non-discriminatory environment to all students, including transgender students.

The federal guidance provided via the May 13, 2016 “Dear Colleague Letter” addresses the hot button issues of gender-segregated facilities.  While schools may provide separate facilities on the basis of sex, schools must allow transgender students access to restrooms and locker rooms consistent with their gender identity; schools may make individual user facilities available to all students who voluntarily seek additional privacy.  Addressing for the first time the issues of housing and overnight accommodations for field trips and similar activities, the federal guidance provides that while schools may provide separate housing/accommodations based upon gender, schools must allow transgender students access to such housing consistent with their gender identity and may not require students to stay in single occupancy accommodations or disclose personal information when not required of other students.  Furthermore, schools — if they so choose — may honor a student’s voluntary request for single occupancy accommodations.

Regarding athletics, the federal guidance notes that while schools may operate separate male and female teams, the schools may not condition participation based upon “overly broad generalizations or stereotypes about the difference between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.”  The guidance notes that Title IX “does not prohibit age appropriate, tailored requirements based on sound, current and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”

The federal guidance also states that schools may not discipline students or exclude them from activities “for appearing or behaving in a manner consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity, such as in yearbook photographs, at school dances, or at graduation ceremonies.”  The federal guidance further noted schools must take steps to protect student privacy related to their transgender status, such as preventing the nonconsensual disclosure of student’s birth name or sex assigned at birth.  Further expounding on privacy issues, the guidance noted the interplay with the Family Educational Rights and Privacy Act — which protects personally identifiable information regarding students — and added that while schools may disclose such information to school personnel with a legitimate educational interest in the information, the fact that a student has disclosed the student’s transgender status to some members of the school does not then allow the school district to disclose such information to school personnel who do NOT have a legitimate educational interest in the information.  The guidance reiterates the rights of students and parents to request the amendment of student educational records, and that students could request that the school correct such records to make them consistent with the student’s gender identity.

What Does This Mean For Connecticut School Districts?  For some of the issues, the new federal guidance may not represent a seismic shift in the law.  As my colleague Zachary Schurin previously noted, courts have been extending gender discrimination protections to cover transgender students with respect to being able to use restrooms consistent with their gender identity. http://schoollaw.pullcomblog.com/archives/transgender-students-and-communal-school-bathrooms-doe-v-regional-school-unit-26/; http://schoollaw.pullcomblog.com/archives/g-g-v-gloucester-county-school-board-a-tipping-point-on-transgender-student-access-issues/ 

More importantly, in 2011, Connecticut enacted specific anti-discrimination protections based upon “gender identity”, and both the Connecticut Commission on Human Rights and Opportunities and Connecticut’s Department of Education previously endorsed guidelines which explicitly addressed the hot button issues involving restrooms and locker rooms. http://www.ct.gov/chro/lib/chro/Guidelines_for_Schools_on_Gender_Identity_and_Expression_final_4-24-12.pdf, This prior state guidance states that under no circumstances may a student be required to use a restroom facility or locker room that is inconsistent with that student’s asserted gender identity; thus, transgender students may not be forced to use the rest room or locker room corresponding to their gender assigned at birth.

As for athletics, the Connecticut Interscholastic Athletic Conference [“CIAC”] has stated that it will not preclude a student from participating on a gender specific sports team that is consistent with the “public gender identity of that student for all other purposes.” http://www.casciac.org/pdfs/ciachandbook_1516.pdf, pp. 56-57. The CIAC notes that school districts should determine a student’s eligibility to participate in a gender specific team based on the student’s gender identification in current school records and daily life activities in the school and community at the time that sports eligibility is determined for a particular season.  For the stated purpose of preventing students from using gender identity to gain a competitive advantage, the CIAC rules do not permit students to transfer from one gender specific team to a team of a different gender during a sports season, and the CIAC generally expects that after the issue of gender identity has been addressed by the student and the school district, the determination will remain consistent for the remainder of the student’s high school sports eligibility.

However, previous guidance did not explicitly address the issue of overnight accommodations, so the federal guidance’s extension of the rules involving locker rooms and rest rooms to these accommodations may present a new development and create future controversy.  Finally, Connecticut law defines “gender identity” so as to arguably require some level of consistency in assertion of identity.  The federal guidance loosely defines “gender identity” to simply reflect one’s “internal sense of gender”, further prohibits school districts from demanding documentary “proof” of someone’s gender identity, and states that schools must treat students consistent with the student’s gender identity once the school administration is notified by the student or parent.  Stay tuned if this represents a distinction with a difference.