Transgender Student Restroom Assignment Revisited

hYou may recall my colleague Zachary Schurin’s recent  discussion of Doe V. Regional School Unit 26. In that matter, the Maine Supreme Court determined that the defendant school district’s requirement that a transgender student utilize a unisex staff bathroom, instead of the communal student bathroom for girls (the gender the student identified with), violated a Maine sexual orientation and gender identity discrimination law (the Maine Human Rights Act).  That Court overturned the Superior Court’s finding to the contrary and remanded the case for fur further proceedings. The case was again in the news this month, when the Associated Press reported that the Penobscot County Superior Court, upon remand, issued an order awarding the student $75,000 in damages and attorneys’ fees. The Court also issued an order prohibiting the district from “refusing access by transgender students to school restrooms that are consistent with their gender identity.”

While obviously not binding upon Connecticut districts, which are governed by Connecticut law as interpreted by Connecticut Courts, the Maine Court’s findings are largely in harmony with guidance from the CT Safe School Coalition pertaining to compliance with Connecticut’s gender identity and expression non-discrimination laws (Public Act 11-55).  The CT Safe School Coalition has suggested that schools are obligated under Connecticut law to provide transgender students with access to the restroom consistent with their gender identity.

The CT Safe School Coalition has also suggested, however, that it may be appropriate to assign a transgender student an alternative restroom, such as a unisex single stall restroom, if the transgender student and administrator feel there is a desire or need for increased privacy or safety.  The guidance goes on to expressly note that “[u]nder no circumstances may a student be required to use a restroom facility that is inconsistent with that student’s asserted gender identity.”

While we do not yet have judicial interpretation of appropriate restroom access for transgender students under Public Act 11-55, we may not have to wait too long.  As previously noted by my colleague Zach Schurin, restroom usage constitutes “one of the most complicated and controversial issues facing transgender students and school districts…”