The laws governing New Jersey school districts are often so ambiguous they bring to mind the old saying, a camel is a horse designed by a committee. Statutes and regulations are usually the product of so many negotiated compromises that the final version is sometimes clear as mud. Until the courts announce the correct interpretation in a case brought before them, school boards must rely on educated guesses about how that litigation will turn out. And so it is with the legalities surrounding the accommodation of transgender students in our public schools.
There are legal, psychological, moral and educational dimensions to every aspect of transgender student accommodation, from bathroom access to preferred pronouns, with passions running high on all sides. Lately, however, concerns about parental notification have taken center stage. Are school staff permitted, or even required, to disclose students’ transgender status to their parents? Do students’ preferences regarding parental notification take precedence? Should different rules apply to very young students?
In the law, as in life, finding the right answers starts with asking the right questions. This article intentionally takes no position on where school leaders should land regarding parental notification, but instead poses questions and identifies issues school leaders should ponder as they think the issue through for themselves.
To help understand where we are in the evolution of transgender accommodation law, let’s review how we got here. On a national level, the legal wrangling over the rights of transgender students focuses on Title IX of the Education Amendments Act of 1972, a federal law prohibiting discrimination on the basis of “sex” in federally funded programs. Title IX does not define “sex,” the U.S. Supreme Court has not yet addressed whether the term means only the anatomical sex assigned at birth or includes the gender one identifies with ‑- and there is no consensus on the issue in the lower federal courts.
In 2016, with sexual politics very much impacting the presidential campaign that year, the Obama administration issued a “Dear Colleague” letter taking the position that “sex” in Title IX includes one’s identified gender, and that transgender students are fully protected under that law. The letter did not have the force of law but served notice on school districts that they could face time-consuming and expensive enforcement actions by “the feds” if they did not adopt that interpretation. The Trump administration, in early 2017, withdrew the letter with the pronouncement that “there must be due regard for the primary role of the States and local school districts in establishing educational policy[,]” thus leaving school districts uncertain about what Title IX requires of them.
The uncertainty over federal law was less of a concern here in New Jersey because our own state-level anti-discrimination statute, the New Jersey Law Against Discrimination, has for many years included “gender identity or expression” and “affectional or sexual orientation” as protected legal classifications. Even so, to this day the LAD has never spelled out what specific accommodations transgender students are entitled to, or how to reconcile those students’ privacy with their parents’ understandable desire to know what’s happening in their children’s lives.
To fill this void, the New Jersey Legislature, in 2017, adopted N.J.S.A. 18A:36-41, directing the commissioner of education to “develop and distribute to school districts guidelines concerning transgender students.” These guidelines were to address, among other things, “confidentiality and privacy concerns, including ensuring that school personnel do not disclose information that may reveal a student’s transgender status except as allowed by law, and advising schools to work with the student to create an appropriate confidentiality plan regarding the student’s transgender or transitioning status[.]”
A year later, in 2018, the Department of Education issued the long-awaited guidance, accessible at https://tinyurl.com/5h5vr54b. Along with accommodations such as access to restrooms and locker rooms, the guidance addressed confidentiality and parental notification: “School personnel may not disclose information that may reveal a student’s transgender status except as allowed by law. . . There is no affirmative duty for any school district personnel to notify a student’s parent or guardian of the student’s gender identity or expression.” The guidance did not advocate keeping students’ sexuality secret from their parents. To the contrary, it encouraged parental involvement, but for the most part left it to the student to decide if, when and how that should be accomplished. Exceptions were provided for legally mandated disclosures, such as HIB investigation results, as long as students were given advance notice this would be occurring.
Like the 2016 “Dear Colleague” letter, the department’s guidance was not a statute or administrative regulation, so it was not legally binding in itself. It did, however, represent the department’s position on what was required to comply with the LAD, so districts that ignored it did so at their peril. Many school boards around the state promptly modified their transgender accommodation policies to track the guidance, including its parental notification standards. Although the changes generated little fanfare at the time, there have been organized campaigns in some districts, over the past year, to roll back transgender accommodations and mandate notice to parents if school employees have any reason to believe students are transgender. In response to these concerns, some districts revised their policies to require parental notification even over students’ objections.
The highly publicized policy revisions by the Marlboro, Middletown and Manalapan-Englishtown districts in Monmouth County, and the Hanover district in Morris County, quickly drew the attention of the state attorney general and the New Jersey Division on Civil Rights, the state agency responsible for enforcing the LAD. Some of those revised policies established a presumption that parents be notified unless there is reason to believe it poses a danger to the student. Two K-8 districts highlighted the younger ages of their students as justification for greater parental involvement. One revised policy mandated parental notification whenever any student exhibits behaviors having an adverse impact on their safety or well-being, as long as it was not based solely on the student’s membership in any of the LAD’s legally protected classifications.
The attorney general and DCR’s director jointly filed administrative complaints with DCR alleging these policy revisions discriminated against transgender students in violation of the LAD. They also sought preliminary injunctions before Superior Court judges in both counties to preserve the status quo while those administrative proceedings ran their course,
The attorney general’s arguments in court were grounded in the LAD’s definition of unlawful discrimination, that is, subjecting individuals to adverse treatment “on account of” their membership in one of the LAD’s many legally protected groups. There is nothing inherently unlawful about notifying parents of their children’s gender identity or expression. It only becomes discriminatory if some students are singled out for that treatment “on account of” being transgender. Still, the attorney general conceded that schools would be obligated to respond truthfully to a parent or guardian who contacted the school seeking confirmation whether their child identified as transgender.
The exception for students whose well-being would be jeopardized by parental notification did not save the policy either, the attorney general argued. The open-ended discretion given school officials to make that determination invites arbitrariness, inconsistency and stereotypical assumptions that children’s transgender status is inherently problematic. The attorney general also presented studies showing that a significant percentage of transgender students suffer anxiety from the prospect of their parents being informed of their status, and in some cases were subjected to violence or removal from their homes.
Some of the districts argued that their policies were not discriminatory at all, because they required parental notification if any students change their gender identity. Others argued that parents’ constitutional right to control the upbringing of their children takes precedence over any objections to disclosure, and notifying parents best serves the students’ interests in any event.
On a preliminary injunction motion, the issue isn’t whether the applicant’s legal position is absolutely correct, but whether there’s enough likelihood of ultimate success that the challenged action should be held in abeyance until a final determination can be made on a complete record. The judges in both counties found the attorney general’s arguments sufficiently persuasive, by that standard, to prohibit the districts from revising their polices until the DCR proceedings are concluded.
While the injunction proceedings against Hanover were underway, that board rescinded its transgender student policy altogether. The judge allowed the board to do so, since nothing in the LAD or the Department of Education’s 2018 guidance required districts to adopt a stand-alone transgender accommodation policy. But the judge issued this warning: “To the extent school boards choose to ignore the [2018 department guidance], school districts and staff are in danger of engaging in activities violative of the LAD and may find themselves exposed to liability.”
As of this writing, the DCR proceedings remain in the early stages. Some of the districts who were enjoined are seeking appellate review. More recently, parents in the Cherry Hill and Cranford school districts have filed suit in federal court challenging the department’s 2018 guidance as unconstitutional and beyond the scope of its enabling legislation. All of these proceedings will take some time to resolve. School board members are sworn to uphold the law, but when the law is still evolving, as it is here, what factors should boards consider before committing themselves to a course of action in this legal twilight zone? Let’s review the available options.
Option #1: Stay the Course. If your board supports the state’s position, as many do, there is no need to change your existing policy if it tracks the department’s 2018 guidance. Even if your board disagrees with that guidance, sitting tight while the current cases work their way to a conclusion may still make sense. You may not satisfy those in your community, or on your board, who disagree with the current policy, but would avoid costly litigation from the state with uncertain results. Once the pending cases are finally decided, there should be binding statewide guidance from our appellate courts that will resolve the issue as a matter of law and take your board off the hot seat.
Option #2: Revise your policy to provide greater parental notification. If your board is considering a revision to your policy to provide greater notice to parents than the department’s 2018 guidance permits, you will need to assess two separate risks: first, the chance that some transgender students will suffer psychological harm, or worse, if their preferences are disregarded; and second, the chance that the attorney general will bring legal action against your district, with all the expense and inconvenience that would entail.
There is nothing necessarily wrong with challenging the state on this or any other issue if your board feels strongly enough about the principles at stake. As responsible public officials, however, you should first consult with legal counsel to satisfy yourself there is a plausible legal argument standing a chance of prevailing in court. You should then commit the financial resources necessary to withstand the litigation that may ensue, even if requires multiple levels of appeals, and be transparent with your community about where you stand and why.
As for the prospect of jeopardizing transgender students, it cannot seriously be disputed that at least some may suffer harm if their parents are notified over their objection. Your board must determine whether the benefits of parental notification outweigh that risk, however small. Of course, whether it’s approving a new contact sport or sanctioning a ski club trip, school boards often make decisions that pose some risk of harm to students. The question isn’t whether something is safe, but whether it’s safe enough. That’s a value judgment. The judge in the Monmouth County case made his: “The statistical possibility that even one transgender student affected by the Amended Policies should run away from home, or attempt or commit suicide, is sufficient to tip the balance of equities in favor of the State.” Your board must make its own value judgment and be prepared to stand by it.
Option #3: Rescind your transgender policy altogether. Since there is no legal requirement to have a free-standing transgender accommodation policy, some districts have followed Hanover’s lead and chosen to eliminate theirs. There are pros and cons to this strategy. The advantages are the community relations benefit of satisfying those who oppose your current policy and avoiding the likelihood of getting sued by the state for having an illegal policy. But having no policy at all comes with risks as well.
One of the important functions of board policies is to provide readily accessible instructions to school employees on how to handle matters with significant legal implications. Your board may already have a broadly worded policy prohibiting discrimination against legally protected groups, including transgender students, so shouldn’t that suffice? Consider this: Most employees probably know how not to discriminate against students based on race, nationality or gender. But would a rank-and-file school employee, or even a high-ranking administrator for that matter, know what the LAD requires by way of transgender accommodation? If not, then what are your board’s expectations for how staff will treat transgender students in the absence of a policy to guide them?
How you answer those questions will drive your board’s decision on whether to keep at least some policy in place, even if it conflicts with the state’s position. One thing is certain: Leaving employees to figure this out for themselves virtually guarantees inconsistency and arbitrary treatment with inevitable legal exposure.
In closing, the definitive legal requirements for transgender student accommodation under the LAD are whatever our appellate courts eventually tell us they are. Until then, school leaders must balance respect for community values, sensible risk management and their own sense of right and wrong in doing what’s best for kids. Hopefully, this article has offered a framework for thoughtful decision-making.
David B. Rubin is of counsel to the Busch Law Group.
