While it is fair to say that this is not the sort of question that most superintendents, college administrators and board of education members would have been asking themselves fifty, or even five, years ago, society has evolved, and, consequently, so have educators’ legal obligations. According to a 2011 UCLA study, approximately 700,000 individuals who identify themselves as transgender live in the United States. That same year, Connecticut enacted Public Act 11-55, prohibiting discrimination on the basis of gender identity or expression in the areas of employment, housing, access to places of public accommodation and education. In fact, Public Act 11-55 amended Conn. Gen. Stat. §10-15c to ensure that children are afforded “an equal opportunity to participate in the activities, programs and courses of study” offered in the public schools without regard to a child’s gender identity or expression.
One of the most complicated and controversial legal issues facing transgender students and educational institutions is restroom usage. Shortly after Public Act 11-55’s passage, the Connecticut Safe School Coalition issued guidance for school districts, recommending in part that students be permitted to use the restroom that corresponds with their gender identity and that students who are uncomfortable with this prospect — whether or not they be transgender — be given the option of using an alternative restroom, such as a unisex single-stall restroom. Notwithstanding the Safe School Coalition’s guidance, questions regarding restroom usage for transgender students remain unsettled in Connecticut. There have been no Connecticut court decisions and, until recently, few, if any, cases nationally.
Earlier this year, however, the Maine Supreme Court issued a major decision on this issue in Doe v. Regional School Unit 26, 2014 ME 11 (2014). Doe involved a transgender girl named Susan who was born as a male, but began to express a female gender identity as early as age two, and by the fourth grade was dressing exclusively as a girl. In third and fourth-grade, students at Susan’s school used single-stall boys’ or girls’ restrooms, but in the fifth grade, they used communal boys’ and girls’ bathrooms. In anticipation of this, the school convened a Section 504 Team meeting for Susan towards the end of her fourth-grade year, at which it determined that in fifth grade, Susan would use the girls’ communal bathroom. The Team additionally recommended that Susan be permitted to use a unisex staff bathroom if her use of the girls’ bathroom became an issue.
Susan’s use of the girls’ communal bathroom in fifth grade went smoothly until a male student, acting upon his grandfather’s instructions, followed Susan into the girls’ restroom and demanded that he also be allowed to use it. The resultant controversy led the school to change course and require Susan to use only the unisex single-stall staff bathroom, a decision it reiterated when it reconvened at the end of Susan’s fifth-grade year to discuss her transition to middle school.
In response, Susan’s parents sued the school district under a Maine sexual orientation and gender identity discrimination law very similar to Connecticut’s Public Act 11-55. The district defended itself in part by arguing that a separate state statute required Maine’s schools to provide clean toilets “separated according to sex,” and thus prohibited it from allowing Susan – a biological male — to use girls’ communal restrooms. One cannot help but wonder why Maine’s public schools required a statutory mandate to provide clean toilets, but regardless of the reason, the Maine Supreme Court rejected the district’s argument, noting that the word “sex” as used in that statute was not defined under the law. Consequently, since the school district had determined that Susan was female, the court reasoned that the district could comply with both the anti-gender identity discrimination law and the segregated-bathroom law only by allowing her to use the girls’ bathroom.
Although Doe is only binding upon Maine school districts, it is instructive for Connecticut educators. For example, despite prohibiting discrimination in places of public accommodation, Connecticut General Statute §46a-64 specifically excepts “separate bathrooms or locker rooms based on sex.” As in Maine, however, Connecticut law does not define the word “sex.” Thus, were a similar case to come before the Connecticut Supreme Court, the court could adopt the reasoning of its Maine counterpart and reach the same conclusion.
Even in the absence of a court challenge, there is an extremely important distinction between Maine’s “clean toilets” statute and Connecticut’s Section 46a-64, for there is nothing in the latter that expressly prohibits a school district from allowing a transgender student to use a communal school bathroom that aligns with his or her gender identity. Thus, the absence of an express proscription would appear to suggest that Connecticut school districts and colleges have the right to adopt such bathroom-usage policies. In fact, given this implicit flexibility, one could argue that schools must permit students to use the bathroom that most closely aligns with their clearly defined gender identity, because to do otherwise would constitute gender-identity discrimination.
As the Doe decision highlights, transgender rights comprise a rapidly developing area of the law, one to which educational institutions – particularly in states that, like Connecticut, have enacted gender-identity discrimination laws – must pay close attention.