New Jersey school rules for transgender students explained
⁉ Are NJ schools banned from telling parents if their child is changing gender identity?
🔴 The Murphy administration has sent new transgender policies to all NJ schools
❓❓ What happens if schools defy these rules?
A great deal of controversy surrounds what many believe are new rules that schools are required to follow regarding transgender and gender-nonconforming students.
Many of you have asked questions about the policies, and in this column we provide the answers.
The answers are taken directly from a memo sent to all school districts detailing the New Jersey Department of Education's guidance on LGBTQ issues.
Keep scrolling to see the answers to the questions you have been asking, and if you have a question we did not answer, you can ask it by following the link at the end of the article.
Is it true that schools cannot tell parents if their child changes their gender identity in school?
Parental notification is not strictly prohibited, but Gov. Phil Murphy’s administration has said the student should decide how, or if, their parents are told of any change in gender identity.
Guidance issues by the New Jersey Department of Education states: “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.”
“Communication with the student is paramount,” the guidance reads. “Schools and school districts are encouraged to communicate openly, albeit confidentially, with students regarding their transgender status or gender identity.”
How can schools refuse to inform parents?
State education officials have cited the New Jersey Law Against Discrimination.
NJLAD generally makes it unlawful for schools to subject individuals to differential treatment based on race, creed, color, national origin, ancestry, marital status, domestic partnership or civil union status, sex, affectional or sexual orientation, gender identity or expression, disability or nationality.
Further cited by the DOE is Title IX of the Education Amendments of 1972 (Title IX) which specifically prohibits discrimination on the basis of sex in federally-funded education programs and activities [20 U.S.C. § 1681(a)].
But schools are legally permitted to tell parents of any change in gender identity?
In a general sense, yes.
State policy reads: School district personnel should have an open, but confidential discussion with the student to ascertain the student’s preference on matters such as chosen name, chosen pronoun to use, and parental communications.
However, districts have been advised by the NJ Department of Education to “consult their board attorney regarding the minor student’s civil rights and protections under the NJLAD.
Why is there controversy?
Some have portrayed the guidance as an outright ban on parental notification. (Which it is not)
Many parents have argued that schools cannot put the rights of a minor child above parental rights, and they have the same duty to tell parents about any change in gender identity as they would about violence or drug use.
What is the concern of the LGBTQ community with letting parents know?
Christian Fuscarino, executive director of the LGBT civil rights organization Garden State Equity, said these school policies create "a hostile and discriminatory environment within the school community."
"The policy's requirement to disclose personal information about students to their parents, such as the use of a name or pronouns that do not correspond to their legal or biological sex, is a violation of privacy and an invasion of their personal lives," Fuscarino said in a written statement to New Jersey 101.5. "If parents want to know if their child is LGBTQ+, they should focus on creating a welcoming environment at home where the child feels comfortable sharing that information with their parents."
Can local school districts set their own policies?
Yes. And no.
In New Jersey, school districts have a fairly wide latitude to establish and modify local policies as long as they do not conflict with state rules.
In the case of transgender policy, the guidance is pretty specific and little modification is allowed.
How are most local school districts dealing with this?
The vast majority of districts have adopted policies in-line with state guidance and do not see it as a major issue.
There have been a handful of districts that have approved policies that are in direct contradiction to state guidance.
Hanover Township was the first district to approve a policy that explicitly requires parental notification if a student changes gender identity.
The Colts Neck Board of Education approved a policy that would require parents to be notified if they are not already aware a student has changed their gender identity or their name. The principal of the school would develop a plan with the student to tell their parent or guardian.
How did the state handle the Hanover case?
The day after the Hanover School board approved a policy requiring parental notification when a student changes gender identity, Attorney General Matt Platkin filed suit and won an injunction.
The case is still pending in court.
A judge has ordered both sides to try and come up with a compromise policy that protects the rights of trans students but also respects parental rights.
What are the penalties for defying the Murphy administration's rules?
There are no hard and fast rules about punishment, but the New Jersey Education Commissioner has broad power to take punitive actions to bring districts into compliance with established rules and guidelines.
This is most often seen when districts under-perform on test scores or there has been some type of malfeasance.
Sanctions can include everything from a written warning to the loss of state aid. In extreme cases, the state does have the power to oust local officials and orchestrate a complete takeover of a school or school district.
How are schools supposed to handle transgender and gender-nonconforming students?
Guidance from the DOE urges “schools and district administrators take steps to create an inclusive environment in which transgender and gender nonconforming students feel safe and supported, and to ensure that each school provides equal educational opportunities for all students, in compliance with N.J.A.C. 6A:7-1.1 et seq.
What does that mean?
It means that schools must accept a student’s asserted gender identity and parental consent is not required.
The state guidance states: “A student need not meet any threshold diagnosis or treatment requirements to have his or her gender identity recognized and respected by the district, school or school personnel.
Nor is a legal or court-ordered name change required.
Even if parents object?
The New Jersey Department of Education specifically addresses that issue in its guidance to local school districts.
“There may be instances where a parent or guardian of a minor student disagrees with the student regarding the name and pronoun to be used at school and in the student’s education records,” the guidance notes.
However, the policy then states: “Staff should continue to refer to the student in accordance with the student’s chosen name and pronoun at school and may consider providing resource information regarding family counseling and support services outside of the school district.”
Further, the policy instructs schools to do the following:
- School districts shall ensure that a transgender student is addressed at school by the name and pronoun chosen by the student, regardless of whether a legal name change or change in official school records has occurred.
- School districts shall issue school documentation for a transgender student, such as student identification cards, in the name chosen by the student.
- A transgender student shall be allowed to dress in accordance with the student’s gender identity.
So, a student could begin transitioning in school, and parents could be kept in the dark about it?
Technically, yes, but the policy does stress the need for communication between the student and parents.
It also makes various counseling and other services available to the student.
The policy does state: “Schools are advised to work with the student to create an appropriate confidentiality plan regarding the student’s transgender or transitioning status. A school district shall keep confidential a current, new, or prospective student’s transgender status.”
Are there exceptions to these rules?
There are, but only under very specific circumstances, such as when a student’s health or safety are in jeopardy or if they have been the victim of a bias crime.
According to the memo sent to school districts: “School personnel may not disclose information that may reveal a student’s transgender status except as allowed by law.
Schools are advised to work with the student to create an appropriate confidentiality plan regarding the student’s transgender or transitioning status.
A school district shall keep confidential a current, new, or prospective student’s transgender status. Schools should address the student using a chosen name; the student’s birth name should be kept confidential by school and district staff.
Due to a specific and compelling need, such as the health and safety of a student or an incident of bias-related crime, a school district may be obligated to disclose a student’s status.”
Are the student’s parents informed if there is a problem or a danger?
Most likely, yes. Aside from the directives about keeping a student’s status private, there are separate rules governing medical issues, physical and mental threats and bullying.
The state guidance to schools takes note of this:
“School districts should make every effort to ensure that any disclosure is made in a way that reduces or eliminates the risk of re-disclosure and protects the transgender student from further harassment.
Those measures may include the facilitation of counseling for the student and the student’s family to facilitate the family’s acceptance and support of the student’s transgender status.”
If a student is harassed or bullied, parents have to be notified, right?
Yes. That is a part of existing law, and while districts now have an obligation to keep a student’s transgendered status private, they are required to notify parents of any act of bullying or harassment.
Information is also required to be disclosed to the parents of the student accused of committing the bullying or harassment.
Again, the guidance from the Department of Education recognizes these requirements: “Under HIB requirements, parents or guardians are entitled to know the nature of the investigation, whether the district found evidence of harassment, intimidation, or bullying, or whether disciplinary action was imposed or services provided to address the incident of harassment, intimidation, or bullying.”
How do schools deal with a student’s official records?
In most cases, schools are required to keep two separate sets of records for a student who has changed gender identity. The school is also required to notify the New Jersey Department of Education of the change.
Schools have been instructed to do the following: “If a student has expressed a preference to be called by a name other than their birth name, permanent student records containing the student’s birth name should be kept in a separate, confidential file. This file should only be shared with appropriate school staff after consultation with a student.
Every effort should be made to immediately update student education records (for example, attendance records, transcripts, Individualized Education Programs, etc.) with the student’s chosen name and gender pronouns, consistent with the student’s gender identity and expression, and not circulate records with the student’s birth name, unless directed by the student.
If a district changes a student’s name or gender identity, it must also maintain locally a separate record reflecting the student’s legal name and sex assigned at birth until receipt of documentation of a legal change of name or gender.”
Do schools have to now have separate bathrooms for transgender students?
Basically, schools must provide whatever the transgender student is most comfortable with.
State policy now states schools must allow students to “have access to restrooms, locker rooms and changing facilities in accordance with their gender identity.”
The policy notes: ”While some transgender students will want that arrangement, others may be uncomfortable with it. Transgender students who are uncomfortable using a sex-segregated restroom should be provided with a safe and adequate alternative, such as a single "unisex" restroom or the nurse's restroom.”