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Transgender Students and the Law

Stonington Public Schools- December 9, 2021

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Presented by Rebecca R. Santiago

Connecticut | New York | Washington, DC | www.shipmangoodwin.com

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Some Troubling Statistics

91.8% of responding students heard negative remarks about gender expression (not acting “masculine enough” or “feminine enough”) frequently or often
87.4% of responding students heard negative remarks specifically about transgender people, like “tranny” or “he/she”
66.7% of students reported hearing negative remarks about gender expression from teachers/other school staff

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Source: A 2019 national survey (GLSEN)

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More Troubling Statistics

81.0% of LGBT students reported being verbally harassed (e.g., called names or threatened) in the past year because of their gender expression
34.2% reported being physically harassed (e.g., pushed or shoved) in the past year because of their gender expression
9.5% reported being physically assaulted (e.g., punched, kicked, injured with a weapon) in the past year because of their gender expression

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Terminology

Gender Identity: A person’s deeply held sense or psychological knowledge of their own gender, which can include being female, male, another gender, or no gender. One’s gender identity can be the same or different than the gender assigned at birth.
Gender Expression: How a person expresses their gender through outward presentation/behavior (e.g., name, clothing, hair style, voice, mannerisms).

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Terminology

Gender dysphoria: Psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.

Cisgender: Describes a person whose gender identity is aligned with the sex/gender they were assigned at birth.

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National Landscape: �Federal Law Protection

Gender-identity protection explicitly precluded

Americans with Disabilities Act
Section 504 of the Rehabilitation Act of 1973 �

Some, but not uniform, gender-identity �protection recognized

Title VII of the Civil Rights Act of 1964
Title IX of the Education Amendments of 1972

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Connecticut Law

In October 2011, Public Act No. 11-55 added “gender identity and expression” to the state’s anti-discrimination laws

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Protects against discrimination in employment, education, housing, public accommodations and in any other areas in which sex discrimination is prohibited
Authorizes persons to file complaints �with CHRO alleging discrimination

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“Gender identity or expression”

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“a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person's core identity or not being asserted for an improper purpose.”

Conn. Gen. Stat. § 46a-51(21)

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Equal Opportunity is Protected by Law�Sec. 10-15c.

The public schools shall be open to all children five years of age and over … and each such child shall have … an equal opportunity to participate in the activities, programs and courses of study offered in such public schools, at such time as the child becomes eligible to participate in such activities, programs and courses of study, without discrimination on account of race, color, sex, gender identity or expression, religion, national origin or sexual orientation ….

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Discrimination in public schools prohibited.�School attendance by five-year-olds.

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Guidance for Schools

Continues to evolve
Connecticut Safe School Coalition: Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination Laws (Oct. 4, 2012)

Emphasizes the need to create safe and supportive school environments
Guidelines adopted by CHRO
Makes clear that law is applicable to students, as well as parents/guardians and school employees

Connecticut State Department of Education: Guidance on Civil Rights Protections and Supports for Transgender Students (September 2017)

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How Do You Show Gender Identity?

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Medical history

Care or treatment of the gender-related identity

Consistent and uniform assertion of such an identity; or

Any other evidence that the identity is sincerely held, part of a person’s core identity, or that the person is not asserting such an identity for an improper purpose

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Questions/discussion points (from original slides 17 and 18):

Is consistent expression of a particular gender identity required to establish gender-identity? “No. Consistency and uniform assertion of a gender identity is one way for an individual to indicate their gender identity, but it is not a requirement that an individual consistently and uniformly assert or express themselves as male or female. Some students may not identify as the same gender all the time but consistently assert their identity as gender fluid. Students who identify as gender fluid may express their gender in ways which conform with more than one gender, even from one day to the next.” CSDE Guidance on Civil Rights Protections and Supports for Transgender Students (2017)

Do transgender students need to provide documentation of their gender identity?“ No. Students are not required to produce documents that reflect their gender identity in order to have the right to be treated consistent with their gender identity. Under the relevant laws, schools are expected to treat students consistent with the student’s stated gender identity even if the education records or identification documents indicate a different sex. Similarly, the school’s obligation to treat a student consistent with the student’s gender identity or expression does not require notice from the parent or guardian.” CSDE Guidance on Civil Rights Protections and Supports for Transgender Students (2017)

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How Should We Respond to Requests to Use a Different Name?

Schools should consistently refer to student by requested name and pronoun, regardless of birth sex

Schools should accurately reflect chosen name on all records (Admin. responsibility)

Need not have legal name change to utilize chosen name �

Ex: Transgendered girl enters high school and asks principal to inform teachers that even though name is “John,” she prefers to go by “Jane.”

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Same With Pronouns…

Use pronouns appropriate to gender identity, regardless of assigned birth sex.�

Q. gender neutral pronouns?

Be alert for continued intentional misuse

May want to ask student privately at start of year how the student wants to be addressed

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What Restroom Should Students Use?

Guidelines consistently provide that students should have access to restroom that corresponds to their gender identity

Sensitivity of other students or their parents is �not an overriding consideration
However, if a student or administrator feels there �is a safety or privacy concern and it is in the best �interest of the student, any student—transgender �or non-transgender—may be provided access to �a non-stigmatizing alternative such as a single-stall �“unisex” bathroom or private area in the locker room

May not require student to use restroom inconsistent with asserted gender identity.

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Creating A Non-Discriminatory Environment

Issues to consider:

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Dignity, respect, and affirm

Use of requested names and pronouns

Bathrooms

Confidentiality and privacy

Unconscious bias

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Best Practices

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Permit participation in sex-segregated activity based on asserted gender identity.

Eliminate gender-sorting and binary terms
Create free-choice learning opportunities

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Permit dress based on asserted gender identity

Consider rewording dress code to make �gender-neutral
Review gender-distinct policies (e.g., blue graduation gowns for boys; white for girls)

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Intervene to prevent and address bullying/harassment

Do not ignore or dismiss harassing language/conduct
Interrupt, Echo, Educate, Question

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Design, disseminate and apply consistently written non-discriminatory policies

Especially in areas where transgendered people have high vulnerability to discrimination such as bathrooms, dress codes, harassment and hostile work environments

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Do not ask about medical history
Do not “out” transgender people to others

Respect privacy

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A biologically male middle school student does not express female gender identity at school. She explains to a guidance counselor that she does present as a girl at home and hiding her female gender identity in school is causing stress and impacting her mental health. The parents and student ask whether it would be okay for her to express her female gender identity at school.

Is this sufficient to confirm asserted gender identity without more?

Scenario:

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The District and family communicated extensively about issues such as student’s name change, registration as a female, access to girls’ restrooms and locker rooms, and eligibility for girls’ athletics. �

The District honored student’s request in all aspects except her request to be provided access to the girls’ locker rooms at the high school.

Is this discrimination?

Scenario:

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Student v. Township High School, Sch. Dist. 211 OCR 05-14-1055 (2015)

Yes. OCR thought so.�

District impermissibly relied on privacy concerns of all students.�
District made privacy curtains available and still did not permit transgender female to change in girls’ locker room, even despite her assertion that she would use the privacy curtain.

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A student known as Thomas reaches out to a guidance counselor explaining that the student is now expressing as female and would like to be addressed as Terry and the pronoun “she” moving forward. ��Terry also explains that her parents do not know about this change and she has no desire to tell them.

Does the school tell the parents?

Scenario:

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A school district required a 7th grade student who presented as male and completed a legal name change to use the nurse’s office for restroom and to change for gym class. On an overnight field trip, the school assigned the student to the female cabin initially, but after protests from the student’s family assigned him to one by himself (and his father as a chaperone).

Does this constitute discrimination based on gender identity and expression?

Scenario:

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Student v. Arcadia Unified School District�DOJ Case No., OCR 09-12-1020 (2013)

Yes. OCR and the DOJ thought so…�

Violation of Title IX
Resolution agreement�

School district must treat student as “male” and stop singling him out from other males�
District must revise policies to provide that transgender and gender non-conforming students are entitled to equal access and to conduct district-wide training with personnel and students

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