Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
As the principal of a middle school, life is always interesting and I have learned a lot. However, last week something came up that I have heard about but never had to address. One of the students met with me privately, and he told me that he is transgender and in the process of transitioning to female. I asked whether his parents were aware of his gender status, and he assured me that they were. I suggested that we all meet together, to which he readily agreed, and we set up a meeting for the next day.
Let me pause here. Now that the student has expressed a gender preference, I don’t know what pronoun to use. I will go out on a limb and start saying “she.” Anyway, the student and her mother came to see me yesterday. They explained that the student has long identified as female, but has only recently decided to live her life as such. They asked if I would change the school records to her new chosen female name, and further if I would instruct all staff members to treat her as female for all purposes, including access to bathrooms and locker rooms. I was as supportive as I could be, given my confusion, and I told them that I would consider their requests and be back to them.
I try to keep up, and I know that there has been litigation over such requests. This seems to be a situation, however, in which I can be sued no matter what I do. What does Legal Mailbag suggest that I do?
You have asked a good question with a simple answer. You should do what the student and her mother ask; you should treat the student in a manner consistent with her gender identity. Indeed, you made the correct transition in your using the pronoun “she” once she expressed her gender identity to you.
Perhaps a little lesson in recent history would be helpful. In 2011, the Connecticut General Assembly passed Public Act 11-55, which prohibits discrimination on the basis of gender identity and expression. Included in that law was an amendment to Conn. Gen. Stat. § 10-15c, which prohibits discrimination against students in the public schools on various bases, which now include gender identity and expression. However, what exactly that means was the subject of some debate and uncertainty at the time.
In October of 2012, the Connecticut Safe School Coalition provided “Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination Laws.” The coalition advised that school officials should defer to the wishes of transgender students as to their gender identity without regard to the sex assigned at birth. Accordingly, the coalition advised that school officials should grant parent or student requests to change school records to conform to any new chosen name, and further that such students should have access to all school facilities that conform to their gender identity, including bathrooms and locker rooms.
In 2016, the Office of Civil Rights of the United States Department of Education issued guidance to the same effect. United States Department of Education, Office of Civil Rights, “Dear Colleague” Letter dated May 13, 2016. That guidance provided in part:
The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.
This guidance was highly controversial, and it played a major part in the leading case on this subject.
In that case, G.G. ex rel. Grimm v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), the Fourth Circuit reversed the lower court ruling and ruled that the plaintiff should be permitted to use the bathroom that conforms to his gender identity. In so ruling, the court relied heavily on an earlier opinion letter from OCR stating that Title IX requires that students be permitted to use the bathroom conforming to the student’s gender identity. Letter to Prince (United States Department of Education, Office of Civil Rights January 7, 2015). The subsequent “Dear Colleague” Letter dated May 13, 2016 elaborates on that “Letter to Prince.”
Reaction to this guidance from OCR and the role it played in the G.G. case was swift, with significant support and significant opposition, including litigation. In Texas et al. v. United States, Case 7:16-cv-00054-O (N.D. Texas 2016), the State of Texas as well as a number of other states filed a request for preliminary injunction in federal court, seeking to enjoin the enforcement of the OCR guidance, and the federal district court granted the injunction. Similar claims were filed in different jurisdictions with mixed success. See, e.g., Students and Parents for Privacy, 2016 WL 6134121 (N.D. Ill. 2016) (injunction denied). However, further litigation was made moot by the United States Department of Education under the Trump administration when it issued new guidance last February. United States Department of Education, Office of Civil Rights, “Dear Colleague” Letter dated February 22, 2017. In that new “Dear Colleague” Letter, OCR formally withdrew the former guidance, i.e., the Letter to Prince dated January 7, 2015 as well as the “Dear Colleague” Letter dated May 13, 2016. As a result, the Office of Civil Rights of the United States Department of Education no longer advises that school districts must defer to the gender identity and expression of transgender students.
While all this was going on, the appeal of the defendant school district in the G.G. case was pending before the United States Supreme Court. When OCR withdrew both the Letter to Prince dated January 7, 2015 as well as the “Dear Colleague” Letter dated May 13, 2016, the Court vacated the decision of the Fourth Circuit. Glouchester County School Board v. G.G., 137 S.Ct. 1239 (U.S. 2017). The Fourth Circuit subsequently vacated the injunction, and a motion to dismiss the case is pending at this writing.
While these developments cast doubt over whether and how Title IX will protect transgender students, Connecticut responded quickly to restate and reinforce the protections for transgender students under state law. Specifically, following the action of OCR withdrawing its previous guidance, Governor Malloy issued Executive Order 56 (February 23, 2017), directing that bathrooms and locker rooms in public schools shall be considered places of public accommodation, subject to the prohibitions against discrimination on the basis of gender identity and expression.
Governor Malloy also directed the State Department of Education, in consultation with the Commission on Human Rights and Opportunities, to develop guidance for school districts that clarifies the right of access students have to school facilities consistent with their gender identity and expression. Relying on Conn. Gen. Stat. § 10-15c, Conn. Gen. Stat. § 46a-58(a) and Conn. Gen. Stat. § 46a-64(a)(1), (2), the State Department of Education issued that Guidance on Civil Rights Protections and Supports for Transgender Students dated June 2017. At the same time, the Department issued helpful Civil Rights Protections and Supports for Transgender Students: Frequently Asked Questions (June 2017). Based on this guidance, the rights of transgender students in Connecticut are clear, and the debate that continues on a national level has no impact on those rights.
If you are still awake after this history lesson, you know what you should do – treat the student in accordance with her gender identity for all purposes.