On Board Online • May 16, 2022
By Courtney Sanik
Senior Policy Consultant
When a student expresses a desire to be known by a name or pronoun different from that given to them at birth, it can present challenges for school districts, especially if the parents are unaware of the situation and the student expresses fear of informing them, or if the parents are opposed to it.
Such situations were addressed, tacitly, in Florida's recently-enacted "Parental Rights in Education" law, also referred to as the "Don't Say Gay" bill. The law requires parent/guardian notification of information about the "mental, emotional, or physical health or well-being" of their children.
Critics have claimed that the "Don't Say Gay" law goes so far as to require schools to "out" gay and transgender students to their parents. However, the law contains an exception; it allows schools to permit personnel to withhold information for parents if a "reasonably prudent person" would believe disclosure would result in abuse, abandonment or neglect. The Florida law also requires schools to encourage students to discuss issues with their parents or facilitate such discussions. (Read the law at laws.flrules.org/2022/22 .)
Meanwhile, parents have been filing lawsuits asserting their specific right to be given information about their child's gender identity in school. According to news reports, there are two such cases in Florida, one in California and one in Ludlow, Massachusetts.
There are enough similarities between Massachusetts and New York law, regulations and guidance that the details of the Ludlow case should be of interest to school policy makers in New York State.
According to the lawsuit, the key events were:
- The school alerted the parents of an 11-year-old sixth grader to some mental health and sexual orientation issues that the student raised with a teacher.
- The parents asked school staff to refrain from further conversations with their child about their mental health, as the parents were addressing it privately, with professional help.
- The next year, the student emailed school staff stating that they were “genderqueer” (i.e., not solely male nor female). The student asked to be referred to by a list of acceptable pronouns and a different name consistent with their gender identity.
- The parents allege that the school instructed employees to honor the student's request and not discuss it with the student's parents, as the student was in the process of telling their parents.
According to the lawsuit, "to affirm a discordant student gender identity at school violates parents' fundamental rights." (Read the court filing at bit.ly/3s6ZdRZ .)
It should be noted that the Ludlow district had no board policy on the matter. But it did have a protocol which seemingly aligned with the guidance issued by the Massachusetts Department of Elementary and Secondary Education entitled "Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment" ( bit.ly/39bGm1m ). Many aspects of this guidance are identical to one issued by the New York State Education Department (SED) called "Guidance to School Districts for Creating a Safe and Supportive School Environment For Transgender and Gender Nonconforming Students" ( bit.ly/3vcGar1 ).
There are also similarities in the laws of the two states. In 2012, Massachusetts enacted An Act Relative to Gender Identity, which includes protections against discrimination in employment and education. Similar guarantees are in New York's Human Rights Law and its anti-bullying law, the Dignity for All Students Act (DASA). Massachusetts has a separate law on bullying that includes special provisions for students more vulnerable to bullying due to gender identity and expression.
- Both state guidance documents say school personnel should speak with the student first before discussing these issues with parents/guardians, and should discuss with the student how the school should refer to them in written communications with parents.
- Both state guidance documents say that while students largely are responsible for determining their own gender identity, the determination rests with parents/guardians for "young students" (Massachusetts) and "very young students" (New York) who are not yet able to advocate for themselves. (Neither document states which ages correspond to "young" or "very young.")
- In both states, parents and guardians have rights regarding student records (confidentiality, inspection, amendment, destruction) until the student reaches age 18. However, students in Massachusetts can obtain access to their records beginning at age 14 or the start of ninth grade.
Because Massachusetts' guidance is so similar to New York's, the outcome of the Ludlow case (still pending) may be relevant to districts in New York State. Now for an important difference: Only New York's guidance addresses situations where students do not want their parents to know about their transgender status: "These situations must be addressed on a case-by-case basis [emphasis added] and will require schools to balance the goal of supporting the student with the requirement that parents be kept informed about their children."
The SED guidance continues: "The paramount consideration in those situations is the health and safety of the student and making sure that the student's gender identity is affirmed in a manner in which the level of privacy and confidentiality is maintained necessary to protect the student's safety."
Should your school board seek to get ahead of situations involving gender identity and parental notification by creating a board policy consistent with these state directives? The state guidance calls for districts to address certain challenges on a case-by-case basis, and this stands in opposition to a policy mandating how all situations must be handled. So, NYSSBA's Department of Policy Services does not recommend creating such a board policy. (See "Frankly, my dear, you don't need a policy on absolutely everything," On Board, 9/18/17, bit.ly/3rJbID4 .)
Instead, the board could ask the district administration to craft a memo to staff or a web posting to improve everyone's understanding of how the district handles student requests to be addressed by something other than their birth name. It could start with a statement about why it's important to honor the gender identity of students who identify as transgender or gender nonconforming (above and beyond the requirements of the law). Say that situations will be handled on a case-by-case basis, perhaps citing that the district will follow DASA and the SED guidance.
Here is some possible language to consider in the example of a transgender student: "The district's response to requests by transgender students who lack supportive parents will depend on a number of factors, including the age and maturity of the student and whether district officials believe that the parents' concerns might be mitigated with more information . One paramount concern must be the safety and well-being of the child." (See "Practical advice involving transgender students in school," On Board, 2/9/15, bit.ly/3Mm0ADQ .)
Sometimes school personnel are in the position of seeking to facilitate difficult conversations between students and parents. The best results are where schools support and assist students, enabling them to have these conversations with their parents.
It can be difficult to find the right words. What your district already has (partially due to DASA) is language in your policies, including Equal Opportunity (NYSSBA Sample 0100), Sexual Harassment (0110), and Bullying Prevention and Intervention (0115) and Code of Conduct (5300), which provide protection and assistance to students. The review of these policies and the details in the attached programs or protocols may be most helpful when a situation similar to Ludlow's arises.
Key questions: Do the students feel safe and supported? Does the data back that up? If not, does the district need to have more professional development to move that needle in a more positive direction?
If your district hasn't had to face issues involving nonbinary, gender nonconforming and/or transgender students, it probably will. Now would be a good time to think about what the district would do. When in doubt about what the law requires, consult your school attorney.
If you have any questions regarding this or other policy topics, suggestions for articles or questions in general, please reach out to us at email@example.com or call (800)342-3360 and ask to speak to someone in the policy department.