Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
To start, let me preface my question by saying that we are aware of the federal and state laws, CSDE policies and procedures, and Executive Order No. 56 regarding restroom and locker room use for transgender students. This past week we have encountered our first student who is using the locker room of the gender they identify with, opposite their assigned sex at birth. This has raised some questions among the students and the teachers have had to address comments they overheard students make to others (not in the presence of the individual). The teachers would like to have a conversation with the whole class about this so that everyone is on the same page regarding the laws, policies, procedures, and options for those students who feel uncomfortable.
Our question is this, can we have a group conversation with the students using the locker room at that time about the rights of the other student without essentially violating that student’s rights? Any advisement on how to handle this situation and others similar in nature would be appreciated.
Locker Room Talk
Dear Locker Room Talk:
Legal Mailbag is pleased that you are up to speed on the rights of transgender students. However, before answering your question, let’s review where we are legally for the less-enlightened reader. As you point out, there are state protections for transgender and gender-nonconforming students. Connecticut law, Conn. Gen. Stat. § 10-15c requires that students in our public schools have an equal opportunity to participate in school activities without discrimination on the basis of their gender identity or expression. In addition, Executive Order 56, issued by then-Governor Malloy on February 23, 2017, reiterates relevant state law and provides that locker rooms in public schools, as places of public accommodation, are specifically protected against discrimination based on sex, including gender identity and expression. Moreover, the Connecticut Department of Education issued guidance in 2017 that provides that transgender students must be allowed to access facilities, which for your case encompasses locker rooms, that are consistent with their gender identity and expression and that the failure to provide such access constitutes a violation of state and federal antidiscrimination laws. Guidance on Civil Rights and Protections and Supports for Transgender Students.
As you are someone who works in schools, Legal Mailbag understands why your instinct is to approach this situation as a teachable moment. However, those instincts may be more harmful than helpful here. Although there are ways you can initiate difficult conversations surrounding gender identity and expression in a group setting, organizing a conversation in response to specific comments about a specific student could compromise that student’s private and personal information and may expose your district to claims that it violated the student’s civil rights.
As you likely know, the Family Educational Rights and Privacy Act (“FERPA”) generally prohibits the disclosure of personally identifiable student information derived from education records. Given that other students likely would connect your proposed conversation with a specific student, Legal Mailbag has concerns that, in having the proposed group conversation, you might inadvertently reveal FERPA-protected information about the student, such as the student’s sex assigned at birth, gender information, and transgender status. Although you may not have the ability to prevent others from finding out about the student’s gender identity and transgender status, it is important that you make every effort to keep this information private and avoid confirming other students’ suspicions through a group conversation or otherwise. Therefore, unless you receive the student’s and/or their parent/guardian’s consent to disclose this information, the student’s gender identity and expression should be kept private. In addition, when you are determining whether or not a specific staff member should have access to this information, you must remember to consider whether that individual has a legitimate educational interest related to such disclosure and only provide the information to those who do (and not to all staff generally).
Such a group conversation could also be considered discrimination under federal and state antidiscrimination laws. Under applicable law, sex discrimination occurs when a person, because of their sex (here, gender identity and expression), is denied participation in or the benefits of any education program or activity. You should consider whether you would have organized a similar conversation surrounding a cisgender student’s use of the locker rooms with that student’s peers. That does not seem likely. I understand that other students may be uncomfortable with the student’s use of the locker room, but as stated in guidance issued by the Connecticut State Department of Education in 2017, the “desire to accommodate others’ discomfort is not a permissible basis” for implementing policies or practices “that discriminate against individuals on such bases.” The proposed conversation could be perceived as differential treatment and a barrier to the transgender student’s participation in your education program, particularly if you are not allowing the student to opt out of participating in this dialogue.
In addition, state and federal law, including Connecticut’s bullying law, protect against gender-based harassment. Although a well-intentioned conversation could help minimize discomfort, it could also have quite the opposite effect. A group discussion about what are now merely “overheard comments” could instead create an unsafe environment for the student if too much (or the wrong kind of) attention is given to them. It is important to strike the appropriate balance between building awareness and teaching inclusion, on the one hand, and avoiding practices that could single out specific individuals based on actual or perceived differentiating characteristics, on the other hand.
Even though there is no foolproof method dealing with these challenging situations, Legal Mailbag will leave you with some suggestions to better engage other students and staff in a manner that does not infringe on student rights.
Education and resources are a good starting point. For example, if your staff members feel uncomfortable participating in conversations about gender identity, it may be helpful to incorporate gender identity in your anti-harassment and anti-discrimination training and information. This will help staff identify the proper tools and terms to use when supporting transgender and gender-nonconforming students (and Legal Mailbag knows some attorneys who may be able to help). It is also a good idea to remind staff members of the school district’s policies and regulations regarding discrimination, harassment, bullying, and Title IX. If your students are struggling with concepts related to gender identity and expression, you could consider identifying members of your staff who have received training on issues related to gender identity and expression and who can serve as resources to students.
Finally, and perhaps most importantly, remember to consider the needs of the transgender student who has been the focus of the overheard comments. That student may have a need for additional support in the form of counseling, access to a trusted adult, or outside resources to help the student feel more safe and comfortable in school. If you have concerns about violations of bullying, harassment, and discrimination laws, remember to take all appropriate steps to investigate and address such concerns. At the end of the day, Connecticut law requires that all students have an equal opportunity to participate in school activities regardless of their gender identity or expression.
This week’s version of CAS Legal Mailbag was guest-authored by Kelsey Scarlett.