SCHOOLS IN TRANSITION: THE CHANGING FACE OF ENROLLMENT AND HIRING PRESENTED BY CHRISTOPHER L. BRIGHAM, ESQ. UPDIKE KELLY & SPELLACY, P.C. CAIS ANNUAL CONFERENCE ON GOVERNANCE SEPTEMBER 24, 2016
OBJECTIVE To understand:! Concepts such as gender identity, and/or expression, and what it means to be transgender! Federal and state laws relating to discrimination based on gender identity, and transgender status! What accommodations steps should be taken to avoid discrimination charges and legal challenges
A transgender female (MtF) discussed her gender identity with her employer three years prior to transition. When she began transitioning she legally changed her name from one commonly associated with men to one commonly associated with women. At that time, she also requested her name and sex be changed on all personnel records. She then had a meeting regarding transitioning with her employer and a plan was created which provided that she would use a single user restroom until she had undergone an undefined surgery. She then used the common women s restroom on a handful of occasions and her supervisor confronted her and told her that this use was making others uncomfortable and that she had to use the single bathroom until she could show proof of having undergone the final surgery. Her supervisor repeatedly referred to her by her former male name and by male pronouns on at least 7 occasions including in front of others unaware of her transition. Is this actionable? HYPOTHETICAL
What is a school to do? KYLE BECAME KYLEE Kyle and his family schedule an interview and tour of the school. The admissions office meets with Kyle and his parents separately. Kyle seems like a good fit and there are no concerns or issues raised during the interview process. Kyle and his parents tour the school and they are shown a boy s dormitory room and the boy s locker room as well as the other school facilities. At the end of the day, Kyle and his parents leave the school and all signs are that he will be submitting an application to enroll in next year s freshman class. Not long after the family leaves campus, Kyle texts the Admissions Office informing it that if he enrolls at the school, he will be enrolling as a girl named Callie. He adds that his parents do not know and requests the school to keep this information confidential. What should the school do?
CONCEPTUAL BACKGROUND
CORE CONCEPTS! Sex: Either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions.! Gender Identity: Individual s internal sense of being male, female, or something else.! Gender Expression: The ways in which we physically manifest masculinity or femininity.
CORE CONCEPTS! Transitioning: The process of changing one s gender expression to match one s gender identity. May involve state of mental orientation as to identity, hormone therapy, and/or surgical intervention! Sex Reassignment Surgery: Typically multiple surgical procedures to change one s anatomy to conform to one s gender identity
CORE CONCEPTS! Transgender: Umbrella term for people whose gender identity, expression or behavior differs from those typically associated with their sex at birth. This includes transsexuals, cross-dressers, and androgynists. Transgender Male (FtM): Female at birth, identifies and lives as a male Transgender Female (MtF): Male at birth, identifies and lives as a female
LEGAL OVERVIEW: CHRONICLE OF A LEGAL AND SOCIAL EVOLUTION
FEDERAL LAWS! Currently no federal statute expressly prohibits discrimination against transgendered employees! Title VII Protected Characteristics: race, color, religion, sex and national origin! ADA specifically exempts transgenders and gender identity disorder not caused by physical impairment! FMLA-related absences may be covered, such as for hormonal treatment or gender reassignment surgery and recovery
U.S. SUPREME COURT: THE EVOLUTION BEGINS Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) U.S. Supreme Court upheld a violation of Title VII based on sex stereotyping a novel legal theory! Evaluators described female employee Hopkins as macho and complained that she overcompensated for being a woman! Supreme Court found that discrimination based on failure to conform to gender stereotypes (non-conformance with gender social norms regarding behavior, dress or grooming) is discrimination based on sex prohibited by Title VII
EEOC FORGES NEW GROUND Macy v. Department of Justice Equal Employment Opportunity Commission (April 2012)! EEOC concluded for first time that discrimination based on gender identity or transgender status is protected and actionable under Title VII as a form of sex discrimination! Ground breaking decision now cited in numerous subsequent administrative decisions and enactments
MACY: FACTUAL BACKGROUND! Mia Macy, who completed a telephone interview for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives in December 2010, was told that the position was hers barring any issues with her background check! While her background check was being completed, Macy informed the Agency that she was in the process of transitioning from male to female! Five days later, Macy was told that the position was no longer available! Another person was hired soon after Mia Macy
MACY: PROCEDURAL HISTORY! Macy filed a complaint against the Agency, indicating that she suffered from a form of sex based discrimination! Macy also indicated that gender identity and sex stereotyping also formed the basis of her complaint against the Agency! Upon notification that the Agency did not intend to follow the process applicable to Title VII complaints for the gender identity portion of her complaint, Macy appealed to the EEOC
MACY: HOLDING! EEOC found that the Agency had improperly separated Macy s claim into two distinct claims, one for discrimination based on sex and one for discrimination based on sex stereotyping, gender transition/change of sex, and gender identity! EEOC concluded that the variations of Macy s claims were merely different ways of stating the same claim for discrimination based on sex, which is prohibited by Title VII
The Bathroom Bill! Early 2016: NC General Assembly passes House Bill 2 a.k.a. the bathroom bill, which requires bathrooms in government buildings, schools and universities to be used by people based on gender listed on their birth certificate.! National backlash protesting the bathroom bill immediately began.! PayPal and Deutsche Bank refused to open new facilities in NC! Conferences, events and concerts were cancelled due to performers protests! NY and CT Governors sign executive orders banning non-essential state travel to NC.! NC Gov. responds with Executive Order 93 which among other things expands state employees discrimination protections to cover sexual orientation and gender identity and restates that local gvts can set their own non-discrimination policies However, remains unclear whether this order supersedes the bathroom bill Due to confusion over which law governs, lawsuits ensue DOJ filed suit against NC arguing that Bathroom Bill violate U.S. Civil Rights Act and Title IX- suit remains pending
BACKLASH PART 2 THE MONEY Money, as always, is also a factor as (due to cancelled events, etc.) NC stands to lose out on such money making factors as: Federal Education Funding: If the US DOJ lawsuit is upheld (proving that the bathroom bill violates federal law), NC could lose federal education funding. During the current school year, state public schools received $861 million, while UNC received $1.4 billion in 2014-2015 academic year. Job Revenue: According to the Center for American Progress, business boycotts have cost NC around $87.7 million. Additionally, PayPal and an unnamed tech company decided to cancel their planned expansions in NC, causing NC to miss out on another $58.3 million in revenue. Tourism: The three largest cities in NC (Charlotte, Raleigh, and Greensboro) stand to lose $109.4 million due to canceled conferences, concerts, and other events. And that doesn t even include. Sports: The NBA pulling its 2017 All-Star Game from Charlotte, which will force NC to lose out on $106 million alone, and an additional $51 million from the NCAA cancellations and $40.4 million from ACC games.
FEDERAL LAWS AFFECTING SCHOOLS Title IX has been interpreted by courts and the U.S. Justice and Education Departments to prohibit discrimination against transgender and gender non-conforming students Some Relevant Federal Laws:! Title IX: No person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.! Equal Access ACT: It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.! Family Educational Rights and Privacy ACT ( FERPA ): applies to all educational agencies and institutions that receive federal funding. Subject to some exceptions, FERPA prohibits the improper disclosure of personally identifiable information derived from education records.
U.S. DEPT OF EDUCATION S OFFICE FOR CIVIL RIGHTS (OCR)! Issues Guidance on Responsibilities of schools to address sexual violence and other forms of discrimination (April 29, 2014) Title IX s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity... - "Questions and Answers on Title IX and Sexual Violence" U.S. Department of Education, Office of Civil Rights, available at http://www2.ed.gov/about/offices/ list/ocr/docs/qa-201404-title-ix.pdf
OBAMA ADMIN (DEPT OF JUSTICE/DEPT OF EDUCATION) & GUIDELINES U.S. Department of Justice Civil Rights Division Correspondence dated May 13, 2016 available at https://www.justice.gov/opa/file/850986/download Compliance with Title IX! As a condition of receiving federal funds under Title IX, schools agree not to exclude, separate or deny benefits to or otherwise treat differently anyone on the basis of sex! Departments treat students gender identity as students sex! Schools must not treat transgender students differently than other students or same gender identity! Desire to accommodate others discomfort cannot justify a policy that signals out and disadvantages a class of students
OBAMA ADMIN (DEPT OF JUSTICE/DEPT OF EDUCATION) & GUIDELINES! Safe & Nondiscriminatory Environment School has responsibility to provide safe and nondiscriminatory environment Must take prompt and effective steps, prevent reoccurrence and remedial action! Identification Documents, Names and Pronouns Treat consistent with identity even if records indicate a different sex
SEX SEGREGATED ACTIVITIES & FACILITIES! Restrooms & Locker Rooms School can provide separate facilities on basis of sex, but must allow transgender students access consistent with gender identity May make individual use options available to all students who seek additional privacy! Athletics Sex segregated teams allowed under Title IX, but transgender students should be able to compete with team of their gender identity! Housing Title IX allows a school to provide separate housing on basis of sex, but school must allow transgender students to access housing consistent with gender identity May not require transgender students to stay in single occupancy when not required of other students Student may voluntarily request single occupancy! Education Records Transgender status, birth name, sex assigned at birth all to be kept confidential School may update records on student s request
CONNECTICUT LAW! Each state s laws are different! You must consult your own state laws to determine if your institution is covered! Conn. Gen. Stat. 10-15c: applies to public schools! Conn. Gen. Stat. 46a-60: applies to employment! Conn. Gen. Stat. 46a-64: applies to public accommodations! In these contexts, it is unlawful to discriminate based on gender identity or expression
ACCOMMODATION GUIDELINES
TAKE A PROACTIVE APPROACH! Employers should provide education and training about the Employer s adoption of any new gender identity policy and about the expectation that no harassment or discrimination will be tolerated! Resources are available from groups such as the ACLU and GLAAD
ADAPTING POLICIES! Employers are urged to create nondiscriminatory policy that sets forth guidelines to address the needs of transgender and gender non-conforming employees and that clarifies how legal guidance should be implemented in situations where questions may arise about how to protect the legal rights and safety of transgender employees.! Policies that Should be Reviewed Include Anti-Discrimination, Dress Code, and Leave Policies
NONDISCRIMINATORY POLICY Sexual Orientation, Gender Identity or Gender Expression Should be Added to protected categories Our school does not discriminate in any way on the basis of sex, sexual orientation, gender identity, or gender expression. This policy is designed to create a safe and productive workplace environment for all employees.
HARASSMENT POLICY Any incident of harassment or violence based on gender identity or expression must be given immediate and effective attention, including:! Investigating the incident;! Taking suitable corrective actions; and! Providing employees and staff with appropriate support
PRE-EMPLOYMENT SCREENINGS! The name and gender of an applicant will likely correspond to the applicants current usage! Background checks may disclose a previous name that indicates a gender different from the applicant s current gender! Management should respectfully ask whether the applicant was previously known by a different name and confirm the name and gender that should be used during the application process
DRESS CODES! Dress codes should be gender-neutral and require reasonable dress on the job. Transgender employees may dress consistently in accordance with their full-time gender presentation! Dress codes cannot regulate off-the-job dress! Dress codes should be applied to employees transitioning to a different gender in the same way that they are applied to other employees of that gender. Dress codes should be modified to avoid gender stereotypes.! Dress codes should not be used to prevent one s gender expression from matching his or her gender identity
WORKPLACE ASSIGNMENTS! In some fields, specific assignments are differentiated by gender! Once an employee has completed his or her transition, the company should treat that employee as his or her preferred gender for purposes of all job assignments! Transgender employees should not be required to undergo or provide proof of any medical procedure
OTHER PRACTICAL ISSUES! Use of Names and Pronouns! Confidentiality and Privacy! Insurance Benefits! Bathroom Policies
USE OF NAMES AND PRONOUNS! All employees should use the name and pronouns appropriate to the gender the employee is now presenting at work! The Human Rights Campaign explains that a person representing themselves as female should be called "she," while "he" should be used for a person representing himself as male, and if you are not sure, you can simply ask the employee which he or she prefers.! The records in an employee s personnel folder and other employee records should also match the name and gender of the employee s choice
CONFIDENTIALITY AND PRIVACY! An employee s transition should be treated with as much sensitivity and confidentiality as any other significant life event! Must Balance Confidentiality Needs with Need to Know: Keep the employee's health status private and confidential, limited to the fewest people necessary and, to the extent possible, limited to Human Resources professionals.! Medical information received about individual employees is protected under the Privacy Act (5 U.S.C. 552a) and under state medical/personnel file statutes
INSURANCE BENEFITS/MEDICAL LEAVE! Employees who have federal insurance benefits should continue to participate and enjoy those benefits after transitioning! If the employee in transition is validly married at the time of the transition, the transition does not affect the validity of that marriage, and spousal coverage should be continued! Medical Leave may be required under FMLA or your STD plan! Discriminatory health insurance exclusions should be removed and medically necessary treatments and procedures should be included in employer-provided healthcare and short-term disability coverage.
SUGGESTED BATHROOM POLICIES Primary suggestion:! Employees should determine the most appropriate and safest option for themselves Secondary Suggestions:! Employees should be permitted to use sex-segregated facilities that correspond to his/her full-time gender presentation, regardless of what stage that person is in their overall transition! Employees can use either single-occupancy gender-neutral facilities or multiple-occupant, gender-neutral restrooms with lockable single stalls! Consideration should be made for incorporating single stall bathrooms
SUGGESTED BATHROOM POLICIES CONTD.! Employees should not be asked to provide any medical or legal documentation of their gender identity in order to have access to gender appropriate facilities
EEOC RESTROOM USE Federal case involving U.S. Army. EEOC ruled that a maleto-female transgender woman faced illegal sex discrimination under Title VII when she was told her use of a common women's restroom was making co-workers uncomfortable and that she was required to use a unisex bathroom instead. Thus, discomfort of coworkers is not a reason to not accommodate gender identity of transitioning transgender employee. Lusardi v. McHugh (April 1, 2015)! See also private sector EEOC lawsuit in EEOC v. Deluxe Fin. Services Corp., (June 4, 2015)
WORKPLACE TRANSITION PLANS! Communicate with the Employee and maintain confidentiality! Treat like an FMLA/ADA type of issue! Obtain Employee s Consent Before Breach Confidentiality! Establish Gender Transition Guidelines by instituting protocols for gender transitions that clearly delineate responsibilities and expectations of transitioning employees, their supervisors, colleagues and other staff.! These transition plans should be customized to fit the company s staffing structure and procedures, and it should be modified individually with each transitioning employee to meet their individual needs! The workplace transition plans address some of the processes that may occur at a company during an employee transition
BEFORE THE TRANSITION BEGINS: TRANSITION TEAMS! Every plan should provide for a transition team! The transition team should include: Members of management The employee s supervisor Members of human resources! Members of the transition team should familiarize themselves with the company s relevant policies and resources
BEFORE THE TRANSITION BEGINS: INITIAL MEETING! Members of the transition team should meet with transitioning employees to inform them of the company s workplace inclusion program and other resources to make sure that the employee is made fully aware of the company s nondiscriminatory position! Discuss and agree to a schedule which would include: The date the transition will officially and formally occur How and in what format the employee s co-workers will be made aware of the employee s transition What updates should be made to the employee s records and when they will be made The dates of any leave that may be needed
UPDATING THE WORK TEAM: TRANSITION MEETINGS! Have a work transition meeting with members of the transition team, the transitioning employee, and other members of the work team! Announce the planned transition at this transition meeting and show solidarity for the transitioning employee! Decide how, and in what format, the transitioning employee s coworkers should be made aware of the employee s transition. It is up to the transitioning employee to decide if they would like to make some co-workers aware of their transition on a one-on-one basis before it is officially announced.
UPDATING THE WORK TEAM: TRANSITION MEETINGS It is important to emphasize:! The transitioning employee s importance to the company! The transitioning employee s preferred name and pronoun! The company s non-discrimination policy! The fact that the transition will not change the work environment Use this time to also:! Solicit any questions! Offer employee training as part of Diversity and Inclusiveness Training! Prohibit gossip and encourage respecting the transitioning employee s privacy
POST- TRANSITION PROCEDURES: UPDATING PERSONNEL FILES! Make sure the employee has a new name plate and ID badge and photo if necessary! Reconstruct the employee s personnel folder to ensure that it matches the employee s preferred name and gender in all personnel and administrative records, including internal and external personnel directories, e-mail address and business cards.! Update the employee s health records
POST- TRANSITION PROCEDURES: HANDLING COMPLAINTS! Complaints should be handled in same manner as any complaint about discrimination! Create or update discrimination / harassment complaint procedures in policies! Promptly respond to any complaints by conducting an unbiased investigation into the situation! Promptly remedy the problem with appropriate actions
GUIDELINES FOR CT SCHOOLS* Legal Framework! CHRO issued declaratory ruling in 2000 CHRO can investigate claims of discrimination based on gender identity! P.A. 11-55 codifies this and amends existing statute to include gender identity! Conn. Gen. Stat. 10-15c! [P]ublic schools shall be open to all children five years of age and over who reach age five on or before the first day of January of any school year, and each such child shall have, and shall be so advised by the appropriate school authorities, 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... gender identity or expression...! Conn. Gen. Stat. 46a-60! It shall be a discriminatory practice... [f]or an employer... to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual s... gender identity or expression...! Conn. Gen. Stat. 46a-64: Discriminatory Public Accommodations Practices Prohibited It shall be a discriminatory practice... (2) to discriminate, segregate or separate on account of... gender identity or expression... or deafness... *Connecticut Safe School Coalition: Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination Laws (Frequently Asked Questions)
GUIDELINES FOR CT SCHOOLS* Legal Framework (contd.)! Law applies to public school children! Law applies to public and private employers that employ three or more employees! Public schools are places of public accommodation can not deny access to someone based on gender identity and/or expression Public Accommodation means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent; Conn. Gen. Stat. 46a-63. *Connecticut Safe School Coalition: Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination Laws (Frequently Asked Questions)
ACCOMMODATING TRANSGENDER STUDENTS! Name Change Schools are to accurately indicate student s chosen name Parents may request student records to be amended Train teachers, staff and administrators Birth name is confidential, not to be disclosed! Pronouns Use name and pronoun appropriate to gender identity regardless of birth assignment Connecticut Safe School Coalition Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination Laws available at http:// www.ct.gov/chro/lib/chro/ Guidelines_for_Schools_on_Gender_Identity_and_Expres sion_final_4-24-12.pdf
ACCOMMODATING TRANSGENDER STUDENTS! Disclosure Meet with parents to determine which school staff should be informed Birth certificate and health records maintained separately! Education and Training Incorporate training and education regarding transgender students into basic training curriculum! Restrooms Students should have access to restrooms that correspond to their gender identity Any student may be provided access to reasonable alternative restrooms such as a single stall unisex restroom "When Chris Becomes Courtney Preparing a Pre-K-8 School Community for a Transgendering Student," John Peterman Summer 2010 available at http://www.nais.org/magazines-newsletters/ismagazine/pages/when- Chris-Becomes-Courtney.aspx
ACCOMMODATING TRANSGENDER STUDENTS! Locker Rooms Students should have access to the locker room that corresponds to their gender identity If there is a reason for increased privacy and safety, any student may be provided access to reasonable alternative restroom such as a single stall unisex restroom In locker rooms that involve undressing in front of others, a private option should be provided for any student who finds changing in groups to be invasive or embarrassing o Use of private area in public area o Separate changing schedule o Nearby private area! Dress Code: Students should have right to dress in accordance with their gender identity
ACCOMMODATING TRANSGENDER STUDENTS/ ATHLETES! Sports, gym classes, athletic teams Transgender students should be able to participate in sex segregated athletic activities based on their gender identity No empirical reason to believe transgender students have any particular athletic advantage because of their ability to participate based on their gender identity CIAC 2016-2017 Handbook Article IX, Section A and B available at http://www.casciac.org/pdfs/ ciachandbook_1617.pdf Transgender student athletes Any transgender student-athlete who is not taking hormone treatment related to gender transition may participate in sex-separated sports activities in accordance with his or her assigned birth gender. A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men s or women s team. A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women s team.
BACK TO OUR HYPOTHETICAL A transgender female (MtF) discussed her gender identity with her employer three years prior to transition. When she began transitioning she legally changed her name from one commonly associated with men to one commonly associated with women. At that time, she also requested her name and sex be changed on all personnel records. She then had a meeting regarding transitioning with her employer and a plan was created which provided that she would use a single user restroom until she had undergone an undefined surgery. She then used the common women s restroom on a handful of occasions and her supervisor confronted her and told her that this use was making others uncomfortable and that she had to use the single bathroom until she could show proof of having undergone the final surgery. Her supervisor repeatedly referred to her by her former male name and by male pronouns on at least 7 occasions including in front of others unaware of her transition. Is this actionable?
Is this actionable? HYPOTHETICAL! Yes, the EEOC found that the Agency's decision to restrict Complainant's access to the common women's restroom on account of her gender identity violated Title VII. Lusardi, EEOC DOC 0120133395, 2015 WL 1607756, at *10 (Apr. 1, 2015)! Further, the EEOC found that she was subjected to disparate treatment on the basis of sex when she was denied equal access to the common female restroom facilities and that the Agency is liable for subjecting Complainant to a hostile work environment based on sex by preventing her from using the common female restroom facilities and allowing a team leader intentionally and repeatedly to refer to her by male names and pronouns and make hostile remarks well after he was aware that Complainant's gender identity was female. Lusardi, EEOC DOC 0120133395, 2015 WL 1607756, at *13 (Apr. 1, 2015)
BACK TO KYLE BECAME KYLEE What is a school to do? Kyle and his family schedule an interview and tour of the school. The admissions office meets with Kyle and his parents separately. Kyle seems like a good fit and there are no concerns or issues raised during the interview process. Kyle and his parents tour the school and they are shown a boy s dormitory room and the boy s locker room as well as the other school facilities. At the end of the day, Kyle and his parents leave the school and all signs are that he will be submitting an application to enroll in next year s freshman class. Not long after the family leaves campus, Kyle texts the Admissions Office informing it that if he enrolls at the school, he will be enrolling as a girl named Callie. He adds that his parents do not know and requests the school to keep this information confidential. What should the school do?
TAKEAWAYS! Most of the State and Federal Laws discussed only apply to public school systems! Independent Schools therefore must consult their local and state laws! Many Independent Schools will be able to adopt their own policies regarding gender identity or expression discrimination! However, it is likely that pressures will continue to mount and protections against gender identity and expression discrimination will come from EEOC guidance, administrative decisions and court decisions extending federal laws to transgender individuals
Questions? Contact: Christopher L. Brigham, Esq. (203) 786-8310 cbrigham@uks.com DISCLAIMER: The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.