Issues regarding transgender students and employees have been at the forefront of political, legal and social discussion in recent months. As independent schools consider their role in promoting the health and safety of students, protecting individual rights and privacy, and preventing avoidable discrimination claims, thoughtful consideration should be given to practices and procedures relative to both transgender employees and students. Though Connecticut’s law protecting gender identity and expression expressly applies to employees and public school students, non-public schools do not explicitly come within the proscriptive circumference of applicable state law concerning transgender rights when it comes to students. Nonetheless, schools are well advised to anticipate how these issues will affect current practices and ensure that such practices square with state law and guidance and, if applicable, your school’s existing mission and policies concerning inclusion, diversity, respect, and non-discrimination.
Impact of Title IX
Much of the public discussion regarding transgender rights was generated in response to guidance issued by the Departments of Education and Justice in May of 2016 confirming their position that Title IX, the federal law prohibiting discrimination on the basis of sex, includes protection for transgender students. In February of 2017, however, the U.S. Department of Education’s directives concerning the rights of transgender students under Title IX changed course when the current administration rescinded the 2016 guidance, muddying the collective understanding of how federal agencies interpret the scope of Title IX. For independent schools, it is important to understand that the requirements of Title IX apply only to educational institutions that are considered “recipients” of federal funds. Thus, regardless of the current national landscape under federal law, independent schools must continue to bear in mind obligations pursuant to applicable state law relative to gender identity and transgender rights.
Since 2011, “gender identity or expression” has been recognized as a protected category under Connecticut’s non-discrimination laws. In light of the federal withdrawal of guidance protecting transgender students in public schools under Title IX, in February 2017, Governor Dannel P. Malloy announced by executive order that the State of Connecticut will continue to assure that the rights of transgender students in public schools remain protected under state law. Although the guidance itself was addressed to Superintendents of public schools within the state, its implications transcend the bounds of public school districts by underscoring the importance of referring to thoughtfully crafted educational institution standards and best practices in furtherance of the protection of transgender student rights.
Although independent schools are not directly subject to the law protecting transgender students in public schools, student safety, non-discrimination and harassment policies, and general campus climate should be revisited to ensure that policies and procedures are adequate. Independent schools in Connecticut may refer to the Connecticut Safe School Coalition’s guidance concerning gender identity and expression non-discrimination in public schools in revisiting their own policies and procedures.
Massachusetts, like Connecticut, has a comparatively robust network of state laws protecting the rights of transgender individuals, including students. Since July of 2012, “gender identity” has been recognized as a protected characteristic in Massachusetts’s anti-discrimination laws, including the realm of public education. In October of 2016, amendments to Massachusetts’s anti-discrimination laws took effect, prohibiting discrimination based on an individual’s gender identity in places of public accommodation. Governor Charlie Baker has criticized the recent withdrawal of federal guidance under Title IX and has vowed to promote the safety of transgender students in the Commonwealth.
As in Connecticut, Massachusetts independent schools are not directly subject to the state’s legal protections applicable to students in public schools. Yet, the otherwise pervasive legal protections indicate that the safety and inclusion of transgender individuals is of paramount importance. Reviewing existing policies and procedures to ensure adequate protection is urged. Independent schools in Massachusetts may refer to guidance published by the Massachusetts Department of Elementary and Secondary Education in conjunction with examination of their own policies.
Key Policies and Practices
Thoughtful consideration of the many facets of independent school student life will allow prospective development of inclusive practices that address the needs of all students. Independent schools, by nature, are different from public schools in many ways, and these differences must be taken into consideration in areas such as admissions, single sex schools, student housing, health care, and travel opportunities. The following list of questions is a starting place for any independent school seeking to examine how adequately it addresses the needs of transgender students:
- Does the school’s existing non-discrimination policy include gender identity or expression as a protected category? If so, does this policy apply only to employees only or does it extend to students?
- Does your handbook made clear that harassment or bullying, based on gender identity or expression will not be tolerated?
- What does your dress code look like? Do you delineate by gender or do you have a global policy for acceptable attire? Likewise, do you require boys and girls to dress a certain way for graduation or other formal occasions?
- Do bathroom and locker room policies ensure that transgender students are able to utilize facilities corresponding to their gender identities? Do locker rooms and bathrooms ensure adequate privacy for all students?
- How do you handle participation in athletics? Has your school and its respective athletic associations discussed or considered common practices to allow transgender students to participate in an equitable and consistent manner?
- Are staff and faculty provided training or offered professional development opportunities concerning best practices for inclusion of transgender students?
- Do procedures exist that allow students to amend or alter gender markers in student records?
Despite the recent reversals concerning transgender student rights at the federal level, laws in a number of states set forth protections for transgender students. Both Massachusetts and Connecticut are generally considered to be at the forefront of states offering the most significant degree of protection. Independent schools in both states should look to state law and guidance vis-à-vis their own policies to ensure student safety and an inclusive, tolerant campus climate.