Legal Question Of The Week - 4/12/2013

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The "Legal Question of the Week" is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to:

Dear Legal Mailbag:

I appreciate that CAS has posted information concerning discrimination on the basis of gender identity or expression on its website. However, the CT Safe Schools Coalition Gender Identity Guidelines are a bit confusing regarding school’s hiring of transgendered individuals. Specifically, the Guidelines say the following on page 2, “The act’s prohibition of discrimination on the basis of gender identity or expression does not apply to religious corporations, entities, associations, educational institutions, or societies regarding (1) employment of people to perform work for them….” Yet two pages later in discussing school employees it says, “The act prohibits an employer or employer's agent, except in the case of a bona fide occupational qualification or need, from refusing to hire someone… based on the individual's gender identity or expression.” These statements seem to contradict one another. Which is correct, or is there some legal magic that brings them to conformity?

Trying to Understand

Dear Trying:

A legal principle is that the more specific provision controls the more general. The general principle here is that employers, including schools, are prohibited from discriminating against employees on the basis of gender identity or expression. This prohibition has limits, and the statutes provide that the protection applies when the “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.” However, when an employee can make that showing, the protection against discrimination applies in most cases.

By express exception in the statute, however, employees working for religious organizations are not covered by the statutory prohibition against discrimination provided that certain conditions are met. The exception applies only “with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.” (Emphasis added). As with so much in this new law, the scope of the exception is not clear. But given the remedial nature of the statute, it is likely that the prohibition will be broadly construed and that the exceptions to the prohibition will be narrowly construed.