As an update to its previous 2017 guidance on the subject (the “2017 Guidance”), the Connecticut State Department of Education (CSDE) released guidance for school districts in January 2024 providing information to assist school districts in meeting their obligations to “ensure that all students, regardless of their gender identity or expression, are treated equitably and provided with an equal opportunity to participate in school activities, programs, and courses of study, free of discrimination or harassment” (the “2024 Guidance”). The 2024 Guidance aims to address developments in federal law since 2017 which either directly affect, or could indirectly impact, transgender students. As an example of a legal development that serves as a basis for the changes reflected in the 2024 Guidance, the CSDE cites the United States Department of Education’s Office for Civil Rights’ “Notice of Interpretation” issued on June 16, 2021, which clarified that sex-based discrimination prohibited under Title IX of the Education Amendments of 1972 includes discrimination based on sexual orientation and gender identity.

Key Updates in the 2024 Guidance 

While much of the 2017 Guidance is similar to the 2024 Guidance, key updates included in the 2024 Guidance include the following:

• Gender Dysphoria – The 2024 Guidance addresses gender dysphoria, which it defines as “the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.” The 2024 Guidance suggests that where gender dysphoria substantially limits a major life activity, such as learning, it could qualify as a disabling condition under Section 504 of the Rehabilitation Act of 1973 (“Section 504”). It also suggests that, where gender dysphoria is “so pronounced as to constitute an emotional disability that resulted in a student’s need for specialized instruction,” a student may qualify for special education and related services under the Individuals with Disabilities Education Act (“IDEA”).

• Parental Notice – The 2024 Guidance identifies situations in which school districts may have an obligation to disclose a student’s preferred name, gender marker, and pronouns to the student’s parents or guardians where these identifiers differ from the student’s sex at birth. While the 2024 Guidance notes that “there is no law that specifically requires districts or schools to inform parents or guardians of a student’s gender identity or expression,” it does suggest that there may be instances when parental communication and involvement are essential to effectuating a school district’s legal obligations pursuant to other statutory authority. As examples of such legal authority, the 2024 Guidance references Section 504 and the IDEA.

• Religious Freedom – The 2024 Guidance notes that there is uncertainty regarding what, if any, weight school districts can give student or employee claims that addressing an individual consistent with their gender identity conflicts with their sincerely held religious beliefs. 

• Student Records – In circumstances where a parent/guardian disagreed with a minor student regarding the name, gender marker, or pronoun to be used at school and in the student’s education records, the 2017 Guidance noted that declining to use a transgender student’s chosen name, gender marker, or pronoun could raise “serious civil rights concerns under existing law.” The 2024 Guidance now provides that, consistent with the Family Educational Rights and Privacy Act (“FERPA”), only parents/guardians or students over the age of 18 have the authority to seek the amendment of education records. Although minor students do not have authority to require amendment of their education records without parent/guardian consent, the 2024 Guidance encourages school districts to work with families to resolve differences regarding these matters.

Next Steps for School Districts 

As noted in the 2024 Guidance, school districts are advised to consider the following next steps:

• Develop policies regarding the use of names and pronouns consistent with a student’s stated gender identity.
  
• Develop policies regarding whether information regarding a student’s chosen pronouns/gender identity will be shared with parents or guardians and, if so, the criteria for sharing, including, but not limited to, student preferences and student safety. Such policies can also govern the use of a gender-diverse student’s chosen name, pronouns, and gender markers despite the objections of parents or guardians.
  
• When circumstances arise in which there is good-faith concern that sharing information regarding gender identity or expression with a parent or guardian could threaten a student’s physical or emotional health, consult with legal counsel regarding how best to proceed. 
  
• When circumstances arise in which a student or family claims that their sincerely held religious beliefs conflict with a school district’s gender-diversity policies, consult with legal counsel regarding how best to proceed. 
  
• Continue to monitor legal developments in the form of applicable statutes, regulations, court decisions, and guidance documents from the United States Department of Education’s Office for Civil Rights (“OCR”), the CSDE, and the Connecticut Commission on Human Rights and Opportunities (the “CHRO”). 
  
• Include professional learning opportunities for administrators and staff regarding student gender identity or expression as well as related district and staff expectations and obligations.

Any questions about these specific issues or any other topic addressed in the 2024 Guidance should be directed to Jessica Richman Smith at jsmith@goodwin.com, Kelsey Scarlett at kscarlett@goodwin.com, Julie Reznik at jreznik@goodwin.com, or any other member of our School Law Practice Group.