In light of the Trump administration’s rescission of 2016 federal guidance from the U.S. Departments of Justice and Education concerning school district obligations to transgender and gender nonconforming students, on February 23, 2017, Governor Dannel P. Malloy, together with Commissioner of Education Dianna R. Wentzell, issued clarifying guidance to Connecticut Superintendents of Schools reaffirming the protections afforded to such individuals under relevant Connecticut state law. Along with this joint guidance, Governor Malloy issued Executive Order 56, directing the Connecticut State Department of Education (“SDE”) and the Connecticut Commission on Human Rights and Opportunities (“CHRO”) to consult and develop guidance for school districts concerning the best practices and legal requirements for protecting the rights of transgender students.
Following Executive Order 56, SDE recently developed two guidance documents summarizing civil rights protections and best practices for supporting gender nonconforming students. The new guidance includes both a document entitled “Guidance on Civil Rights Protections and Supports for Transgender Students”, which provides an overview of legal requirements and best practices, and a Frequently Asked Questions document, which addresses discrete issues related to such topics as privacy, student records, and access to sex-segregated areas, such as bathrooms and locker rooms. Further, the guidance urges districts to develop and implement professional development programming for staff based on the extensive information in both documents.
As noted, the guidance touches on several important and practical topics, including the construction and applicability of several laws, on-the-ground practical solutions and considerations, and administrative concerns. We have summarized some of the main points below, and encourage further review of the guidance in its entirety.
The guidance reiterates the applicability of both state and federal law to the protection of transgender students, noting that the withdrawal of federal guidance did not change underlying legislation of Title IX, but rather altered relevant administrative agency interpretation and enforcement. Despite the withdrawal of the federal guidance, public schools remain obligated to provide gender minority students with equal access to educational programs and activities, and the guidance notes that case law has interpreted Title IX’s protections based on sex to include a student’s gender identity or expression. Further, the guidance notes that the Equal Employment Opportunities Commission (“EEOC”) has held that accommodation of others’ discomfort is not a permissible reason to fail to accommodate a gender nonconforming individual. More specifically, Connecticut state law expressly prohibits discrimination on the basis of gender identity or expression. The guidance explains that protecting the civil rights of one student does not violate the freedoms, religious or otherwise, of other students.
The guidance summarizes relevant terminology and definitions, and, notably, contains some information on considerations for accommodating gender fluid students. Gender fluidity “may be a form of both gender identity and gender expression [and] … generally describes individuals who may not identify as the same gender all the time, and whose gender expression may change accordingly.” With regard to gender fluid students, the guidance notes that gender identity need not be consistently expressed. Although some, and indeed most, gender nonconforming individuals generally identify and express as either male or female, some individuals’ identities are not tied to this traditional dichotomy. The guidance specifically notes that a consistent and uniform assertion as one gender is one way to assert gender identity and expression, but such consistency and permanence is not the case with all gender nonconforming individuals. Students need not consistently and uniformly assert or express themselves as “male” or “female”, and further, a student “who consistently asserts their identity as gender fluid may express that gender in ways which conform with more than one gender, even from one day to the next.”
School districts must take care to understand gender fluidity and accommodate such gender nonconforming students as long as the identity is sincerely held and not asserted for an improper purpose. Further, respect for such students must be demonstrated through proper use of the student’s chosen name and pronouns. If confusion exists about a student’s gender identity, expression, pronouns, or name, the best practice with regard to any student is to privately raise the subject with the student in an age-appropriate manner. Understanding and accommodating non-binary or otherwise gender-nonconforming students may be unfamiliar and new; however, over time, the legal requirements will become more familiar as districts strive to understand and support all students.
Student Records and Administrative Concerns
Generally school districts address requests to amend a student’s education records through the amendment process set forth in the Family Educational Rights and Privacy Act (“FERPA”). The guidance, however, cautions against establishing a process that requires “unique hurdles for gender minority students and their families.”
The guidance also addresses situations in which a minor student requests a change to student records to reflect the student’s gender identity or expression and the student’s parents/guardian disagrees the student’s request. The guidance notes that, under FERPA, school districts may amend a student’s education records upon a minor student’s request, although ultimately the statutory right to request an amendment of education records for being inaccurate or misleading is held by the parents/guardians or students age 18 or over. Importantly, however, the guidance explains that FERPA provisions regarding the accuracy of student records should “not be understood to limit … the student’s right under anti-discrimination laws to be treated consistent with the student’s gender identity.” Therefore, while FERPA generally provides parents/guardians of minor students the right to request an amendment to education records when they believe them to be inaccurate or misleading, the new guidance cautions that there may be situations where civil rights laws “require changing a minor student’s record regardless of whether a parent/guardian consents or whether the FERPA right to demand a change to records even applies.” Therefore, FERPA notwithstanding, school districts must be prepared to address situations in which it may be appropriate to change a student’s education records based on the request of the student in order to comply with civil rights laws, even if the student’s parents/guardian is not in agreement.
With regard to administrative matters, the guidance notes that gender and name information reported in the Public School Information System (“PSIS”) should reflect a student’s stated gender identity and chosen name. Students who do not identify with the male/female binary should be reported as Non-Binary in PSIS. Further, the guidance notes that schools need not retain documentation concerning a student’s gender or submit such information to the Department of Education. The guidance notes that the school should simply indicate “correction of existing record” or “medical documentation” as the reason for the change of a gender marker on records.
Recognizing the complexity of the interplay between FERPA and civil rights laws with respect to student records issues, the guidance suggest districts review the new guidance and consult legal counsel when appropriate.
Restrooms, Locker Rooms, and Other Sex-Segregated Activities
In keeping with prior guidance concerning the accommodation of transgender and gender-nonconforming students in sex-segregated locations and activities, the new guidance reiterates the requirement that transgender students be allowed to access facilities consistent with their gender identity. Schools may not require such students to use individual use or unisex facilities when other students are not required to do so, even if community members are uncomfortable. To confront the privacy concerns that attend this requirement, districts are encouraged to create private options for any student interested in additional privacy. If such option is utilized, the facility should be as close as possible to the facility that other students utilize. Additional privacy may be accomplished by offering private changing areas, a separate changing schedule, or use of a nearby private area. In no event should certain facilities be designed for use by transgender or gender-nonconforming students. In essence, the guidance reaffirms that districts should provide all students options for greater privacy as a means to address any student’s privacy concerns.
The new CSDE guidance comes at a welcome time as schools around the state and nation prepare for a new school year. Educators and school district staff are encouraged to review the guidance documents for a refresher on existing requirements and for additional information and considerations for providing gender-nonconforming students equal access to educational programming and activities free of discrimination.