Less than one week after the Second Circuit Court of Appeals held that Title VII’s prohibition on sex discrimination bars discrimination on the basis of sexual orientation, the Sixth Circuit Court of Appeals issued its own landmark Title VII decision finding that the antidiscrimination statute prohibits discrimination against transgender or transitioning individuals even where an employer’s religious exercise may be substantially burdened.
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Judge Holding Documents

We have been tracking the development of litigation concerning rights, obligations, and duties with regard to transgender students as cases unfold across the country.

Earlier this summer, Texas and twelve other states challenged the propriety and legality of a joint Dear Colleague Letter (DCL) issued by the U.S. Department of Justice and U.S. Department of Education on May 13, 2016 which interpreted Title IX of the Education Amendments of 1972 (Title IX) to extend antidiscrimination protections to transgender students. On Wednesday October 19, 2016, a federal district court judge for the Northern District of Texas, Judge Reed O’Connor, issued an order clarifying the scope of the preliminary injunction previously granted in the court case challenging the legality of the DCL in Texas v. U.S., No. 7:16-cv-00054-O (N. D. Tex. May 25, 2016).  The injunction is now being appealed to the 5th Circuit Court of Appeals by the defendant federal agencies.
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On September 8, 2016, the United States Department of Education and the United States Department of Justice’s Office of Community Oriented Policing Services (“COPS”) jointly released new guidance regarding school resource officer programs.  The new Safe School-based Enforcement through Collaboration, Understanding, and Respect (“SECURe”) rubrics are the result of the collaboration and partnership between these two federal agencies in an attempt to ensure that local and state educational agencies are implementing effective and positive school resource officer programs in the nation’s schools.  The SECURe rubric for local educational agencies aims to provide guidance to school districts on how to build trust between students and law enforcement officials through the school resource officer programs, while ensuring that school resource officer programs are administered responsibly in a non-discriminatory manner that takes a proactive approach to keeping students out of the school-to-prison pipeline.


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In recent years, there have been increasing concerns involving discrimination faced by the transgender community.  Not surprisingly, these concerns have centered on the challenges faced by gender non-conforming students and whether the needs of such students are being met by school officials.  Though the law on gender identity is still in its relative infancy, schools are now mandated to create and maintain a safe school environment free from discrimination on the basis of gender identity and expression under Connecticut law.  Though the relevant federal civil rights laws do not expressly extend to gender identity or expression, it is increasingly clear that the federal government has taken the position that there is protection for gender non-conforming students under federal law.  For example, last month, the U.S Departments of Education and Justice (the “Government”) jointly filed a “Statement of Interest” challenging a school district’s legal contention that a transgender student may only establish a claim of sex discrimination based on evidence of sex stereotyping.

In his complaint, the plaintiff, a student presenting as male, alleged that school officials refused to allow him to use male restrooms, and instead, required that he use a female staff or a unisex restroom, which resulted in peer harassment. The plaintiff also alleged that school officials revealed his status to members of the school community by repeatedly using his birth name and female pronouns when referring to him. Moreover, the plaintiff alleged that after his mother expressed concerns to school officials, an administrator told his mother she was “being overly sensitive.”

In defense, the school district filed a Motion to Dismiss arguing that the evidence proffered by the plaintiff was insufficient to establish a claim of sex discrimination.  In challenging the school district’s argument, the Government argued that Title IX provides protection for transgender students.  More specifically, the Government asserted that “[u]nder Title IX and the Equal Protection Clause, discrimination based on a person’s non-conformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes [sic] discrimination based on sex.”
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In response to the Ebola epidemic, the U.S. Department of Education (“USDOE”) has issued a letter to schools and districts providing updated guidance and resources to assist schools and communities in establishing practices and protocols related to Ebola, as well as seasonal flu.

The most comprehensive resource provided through this letter, which was issued in December 2014, is from the Centers for Disease Control and Prevention (the “CDC”).  The CDC guidance outlines actions school officials may implement, in consultation with public health authorities, to further reduce the potential risk of Ebola transmission in schools.  In doing so, the CDC delineates the roles of public health officials and educators and warns against educators usurping the responsibilities of public health officials.  Specifically, this guidance clarifies and confirms that the assessment of a person’s risk of Ebola exposure and evaluation of clinical condition to determine appropriate public health actions is within the purview of public health authorities and advises that only public health authorities may determine whether, and to what extent, monitoring or restriction on movement, including the issue of school attendance, is necessary.

Conversely, the CDC guidance advises educators to develop an emergency operations plan for responding to Ebola-related incidents, including situations where a school may need to contain the disease.  To assist in this process, the CDC guidance provides educators with practical considerations and advises the review of, and compliance with, “public health codes, infection control guidance, and applicable Occupational Safety and Health Administration (OSHA) standards.”  Further, the guidance provides school officials with recommended actions based on a person’s identified risk level, which may be found here.

In addressing issues related to Ebola, the CDC reminds schools and districts to be cognizant and compliant with the Family Educational Rights and Privacy Act (“FERPA”), Health Insurance Portability and Accountability Act (“HIPPA”) and any applicable privacy laws when working with public health authorities to establish protocols for communication and implementation of recommendations relative to Ebola.


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