Late last week the Connecticut State Department of Education (“CSDE” or “Department”) issued new guidance addressing the rights of transgender students in Connecticut schools. Entitled Guidance on Civil Rights Protections and Supports for Transgender or Gender-Diverse Students, the CSDE’s new guidance document substantially updates prior 2017 guidance from the Department to reflect developments in federal law including the United States Department of Education Office of Civil Rights’ (“OCR”) June 2021 “Notice of Interpretation” regarding discrimination under Title IX as well as the United States Supreme Court’s decision Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020) that held that Title VII of the Civil Rights Act of 1964’s sex discrimination prohibition applied to transgender employees.
The new CSDE guidance closely follows the Department’s 2017 guidance in many areas and at its core reiterates the general principle that has been formally codified under Connecticut law since 2011 that transgender students are legally entitled to an equal opportunity to participate in all facets of the school environment. In the words of the CSDE’s new guidance, this means that Connecticut schools must “provide gender-diverse students with equal access to educational programs and activities . . . irrespective of concerns or objections raised by other students, parents, staff, or community members,” and as a component of this obligation, “must ensure that all students are treated equally and are not subjected to either adverse or inequitable treatment by staff members or other students due either to their gender identity or expression . . .”.
More specifically however, the new guidance addresses a number of topics and lingering issues that were not addressed by the Department in 2017 and makes at least one major change in interpretation. Here is an overview of the CSDE’s advisements on those issues along with some other major points of emphasis from the Department that Connecticut school leaders should be aware of:
Correction or Amendment of Student Records and Use of Preferred Names, Pronouns and Gender Markers
In a significant departure from its 2017 guidance, the Department now appears to take the position that “education records,” as that term is defined under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”), may only be amended pursuant to an official FERPA request for the correction or amendment of a student’s education records made by a parent, guardian or “eligible student” which FERPA defines as a student who has reached “18 years of age or is attending an institution of postsecondary education.” 34 C.F.R. § 99.3. “Education records” are broadly defined under FERPA to mean all records maintained by a school that are directly related to a student and as the new guidance notes may include records in paper or digital format. 34 C.F.R. § 99.3.
Back in 2017 the CSDE advised that schools were obligated to correct education records to reflect names, gender markers and pronouns consistent with a student’s gender identity upon student request even if the student’s parent did not consent to the change and to thereafter refer the family for appropriate counseling in light of the apparent conflict.
Now however, the Department advises that education records may only be amended or corrected pursuant to a FERPA request to do so made by a parent, guardian or eligible student. At the same time though, the CSDE emphasizes that schools should not require formal documentation or parental consent/approval to recognize a transgender student’s preferred name and pronouns since doing so could have the practical effect of denying a transgender student’s equal access to educational programming and activities.
On the basis of the new guidance, when it comes to future requests to change records made by transgender students, schools will need to be very cognizant of the distinction between “education records” under FERPA and other school documentation and materials. Education records – such as transcripts, PowerSchool pages, IEPs, etc. may only be corrected pursuant to a formal FERPA request, however documents that are maintained solely by the maker of the record – perhaps class rosters made by teachers listing each students preferred name – can and should be amended solely upon a transgender student’s request. Moreover, requests by transgender students to be recognized by a different name and with different gender markers and pronouns should be honored even if such a change is not made to education records absent a parental request.
In addition to this change, the guidance goes on to note that legal name changes are not required to amend student records pursuant to a FERPA record amendment request, but reiterates that only parents, guardians and eligible students have the authority to seek the amendment of education records.
Nondiscrimination Obligations
The CSDE emphasizes that schools have a legal obligation to take “swift and meaningful steps to eliminate harassment that is based upon a student’s gender identity or expression once the existence of such conduct has been established.” In connection with this responsibility school districts should work to ensure that their schools are safe spaces that are welcoming and supportive of transgender students. This effort can be furthered by providing transgender students with resources “such as identifying — and advising students and employees of — specific administration and staff members who can serve as contacts with whom students can discuss concerns or incidents, or can otherwise check in.”
In light of the CSDE’s guidance on this point, it is a good idea for school leaders to consider designating appropriate administrative support staff for gender identity issues in student handbooks and policy documents as well as other ways in which students may be made aware of available supports and resources that schools may have to offer.
Gender Dysphoria and Section 504 and the IDEA
The CSDE provides that students who struggle with “gender dysphoria,” which the Mayo Clinic 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,” may be eligible for accommodations or services under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 (“Section 504”) or under the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §§1400, et seq. (“IDEA”).
The 2017 Department guidance did not address this issue so it is important for special education administrators and Section 504 coordinators to recognize that students who are struggling with gender identity issues may be eligible for services under Section 504 or the IDEA. Based on the CSDE’s new guidance, educators involved in the 504 and PPT team process should consider including provisions that make clear that students suffering from gender dysphoria be referred to by the name, pronouns, and gender markers that correspond to the student’s gender identity or expression in 504 plans and IEPs.
New Terminology
The guidance introduces the term “gender diverse” into the transgender student accommodation dialogue and uses it interchangeably with the word “transgender.” The new term appears to replace the arguably pejorative phrase “gender non-conforming” that was used in the 2017 CSDE guidance.
Parental Notice, Communications, and Objections
Conflicts between students and their parents over student gender identity have been incredibly challenging to navigate. Do staff members need to notify parents of a student’s gender identity issues? What happens if a parent objects to a student’s preferred name or pronouns at school or otherwise disagrees with the student’s expressed gender identity? There is an inherent tension in education law between the general rights of parents with respect to the education of their children on one hand, while on the other hand Connecticut law clearly requires schools to treat students in accordance with their gender identity without regard to parental consent.
In its 2017 guidance, the Department acknowledged the legal and practical difficulty of these issues but did not give any definitive guidance. The new CSDE guidance delves deeper into the waters while still acknowledging the legal and practical difficulties.
First, with respect to whether a school is required to notify parents of a change in a student’s preferred name, pronouns and gender markers, the Department’s new guidance provides that “while there is no law that specifically requires districts or schools to inform parents or guardians of a student’s gender identity or expression” such notification is allowed under the law and is in fact required in certain situations under Section 504 and the IDEA.
Second, with respect to parent requests for gender identity-related information regarding their children, the new guidance notes that there is no state or federal law that designates such information as confidential but that school leaders must consider a student’s physical and emotional wellbeing before disclosing such information to parents.
Establishing Gender Identity and Gender Fluid Students
The new CSDE guidance reiterates that consistent and uniform assertion of a particular gender identity is not necessarily required to establish gender identity under the law and notes that gender fluid students may express themselves in ways that conform with more than one gender even from one day to the next and that as such are legally entitled to appropriate gender identity recognition even if such identity may not be consistent with traditional gender characteristics.
The CSDE guidance also emphasizes that documentation is not required to establish gender identity and that rules or practices that require documentation before accommodating a student’s gender identity are likely discriminatory even in the context of athletics. NOTE – CIAC bylaws provide that students are not allowed to try out simultaneously for CIAC sports teams of both genders and do not entitle students to seek to transfer from one gender specific team to a different gender specific team during the same season.
Restrooms and Locker Rooms
Finally, the CSDE’s new guidance essentially reiterates the Department’s 2017 guidance on student restrooms and locker rooms and related issues. Fundamentally, Connecticut schools are mandated by law to afford transgender students with access to school facilities in a manner consistent with student gender identity. If a cisgender or gender-diverse student requests a private bathroom or changing space they can be provided with such, but school officials cannot segregate transgender students since doing so would infringe on student rights to use facilities consistent with their gender identity.
Concluding Thoughts
The CSDE’s new transgender student guidance does not address every issue that schools have confronted or will confront with respect to gender-diverse students but it goes further than the 2017 guidance in many areas and gives a legal roadmap for considering key issues moving forward. While every topic is not addressed (i.e. overnight field trips) school leaders should carefully review their transgender student accommodation practices and policies in light of the new CSDE guidance.
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