Education Law Notes  

In neighboring states last week, the federal courts issued two decisions affirming the rights of transgender students and athletes.  In Connecticut, the Second Circuit of the U.S. Court of Appeals affirmed the dismissal of a complaint brought by cisgender female athletes against the Connecticut Association of Schools, the Connecticut Interscholastic Athletic Conference (CIAC) and various school districts alleging that the CIAC’s policy of allowing transgender students to compete on athletics teams consistent with their stated gender amounted to sex discrimination against the cisgender athletes under Title IX of the Education Amendments of 1972.  While in Massachusetts, the Federal District Court of Massachusetts dismissed a complaint brought by parents of two students alleging that a district’s policy requiring staff to use the pronouns requested by students and prohibiting staff from informing the students’ parents of such request without permission of the student violated the parents’ rights under the Fourteenth Amendment of the United States Constitution.

First, in Soule, et al v. Connecticut Association of Schools, et al, the plaintiffs were four cisgender high school students who ran track in high school.  They alleged that the CIAC’s policy of allowing transgender students to compete on the team consistent with their stated gender discriminated against cisgender female athletes on the basis of sex and resulted in the loss of state championships, college scholarships and job opportunities.  The plaintiffs sought an injunction declaring that the policy violated Title IX, requested monetary relief, and also requested that the Court require the CIAC and member school districts, to, in their words, “remove male athletes from any record … designated for girls or women.”  The Court found that the plaintiffs’ claim that the policy deprived them of the “chance to be champions” failed because they did not allege a cognizable deprivation.  Indeed, on numerous occasions the plaintiffs were “champions”, finishing first in events, sometimes even when competing against the transgender athletes of whom they were complaining.  While not foreclosing the possibility that athletes under different factual circumstances, such as when a female team is completely prohibited from participating in a state championship while a corresponding male team is allowed to do so, could state a claim of deprivation of a “chance to be champions”, here the Court found that the policy did not deprive female athletes of the right to compete during state championships.  Similarly, the Court also found that any claim of loss of prospective future employment was far too speculative to support a claim under Title IX.

Perhaps of most import, the Court held that while it is clear that money damages are available in a private lawsuit brought pursuant to Title IX, such damages are only available in situations where the recipients of federal funding had adequate notice that they could be liable for the conduct at issue.  Here, the Court pointed to the flip-flopping positions taken by the Office of Civil Rights (OCR) of the U.S. Department of Education on the rights of transgender students under Title IX, as well as the U.S. Supreme Court’s recent Bostock v. Clayton County decision (interpreting Title VII’s prohibition against sex discrimination in employment to prohibit discrimination against transgender employees) and the findings of other federal circuit courts of appeal that Title IX protects transgender students to mean that a funding recipient would not have any expectation that it could be violating Title IX by allowing transgender students to play on the athletic teams that correspond to their identified gender.  Thus, the Court found that claims for monetary damages were barred in this situation.

In fact, the OCR has never issued a definitive statement regarding single gender high school athletic teams.  Even in its newest proposed Title IX regulations, the OCR merely stated “The Department will engage in a separate rulemaking to address Title IX's application to athletics.”

Also last week, the Federal District Court of Massachusetts addressed, in Foote v. Town of Ludlow, Ludlow School Committee, whether a district’s policy requiring school staff to use students’ preferred pronouns and names and prohibiting school staff from sharing this information with the students’ parents without the students’ permission violated the parents’ rights under the Fourteenth Amendment of the United States Constitution to (1) direct the education and upbringing of their children, (2) to make mental health decisions for their children and (3) to family integrity.  The Court dismissed all of the claims, finding that none of them had merit on their face.  While Massachusetts federal court decisions do not set precedent for Connecticut courts, the analysis is still instructive as it is indicative of the way a Connecticut court may interpret this issue as well.

As to the plaintiffs’ claim that the district’s policy violated the parents’ right to make mental health decisions for their children, the Court first noted that referring to a person by their preferred name or pronouns, which requires no special training or skill, cannot be seen as mental health treatment, especially where the students in question had no mental health diagnoses.  Rather, the Court noted that “[a]ddressing a person using their preferred name and pronouns simply accords the person the basic level of respect expected in a civil society generally….” 

The Court next addressed the parents’ claim that failing to inform them of their children’s preferred pronouns and names violated their substantive due process rights under the Fourteenth Amendment of the United States.  While expressing its opinion that it was “apprehensive” of the district’s alleged policy of prohibiting school employees from telling a parent of their child’s change of name and/or pronouns at school without the student’s consent, the Court found that it did not rise to the level of a constitutional violation.  The Court, therefore, dismissed the complaint outright.

Connecticut specifically prohibits school districts from discriminating against students on the basis of their gender identity and expression, and the Connecticut Department of Education in its 2017 Guidance on Civil Rights Protections and Supports of Transgender Students, while not providing clear guidance as to how to handle a situation where a student and parent disagrees as to the student’s name/pronouns and gender, has noted that “declining to use a transgender student’s chosen name, gender marker and pronoun at school or in the student’s records … because a parent/guardian objects would raise serious civil rights concerns under existing law and could cause serious psychological/emotional harm to the student.” 

When faced with these issues, it is best to consult your attorney to determine the best course of action.  You can reach out to any of the attorneys in our School Law practice for assistance in these matters.