NJASA

Commissioner of Education Has Issued

Transgender Student Guidance of School Districts

On July 21, 2017, New Jersey enacted  N.J.S.A. 18A:36-41, which required the Commissioner of Education to draft and issue specific Guidance to help schools address the needs of transgender students. The Guidance was issued this fall and can be found here. The Guidance states that its purpose is to help school districts and administrators to create an inclusive environment in which transgender and gender nonconforming students feel safe and supported. It is also intended to ensure that schools provide equal educational opportunities for all students.

The Guidance emphasizes that open communication in a confidential manner with transgender students is key to ensuring that appropriate steps have been taken to determine a student’s preferences and privacy needs. The Guidance contains an extensive definition section that is useful in both educating the school community on the subject, and for revising district policy. Specifically, “transgender” is defined as a term for an individual whose gender identity and/or gender expression differs from those typically associated with the sex and gender assigned at birth.”¹ There are several additional definitions, and the Guidance recommends that school personnel discuss this terminology and pronouns with each other and with students to enable students to communicate their preferences.

Schools should utilize a “student-centered approach,” and the school districts must accept the student’s asserted gender identity. The Guidance notes that parental consent is not required.² In addition, a student is not required to meet any threshold diagnosis, nor is a legal or court-ordered name change required.  Most importantly, there is no affirmative duty for any school district personnel to notify a student’s parents/guardian of a student’s gender identity or expression. Even if a parent’s consent is needed for a legal name change on official records, the student’s request to be known by a certain name and referred to by a certain pronoun must be honored in school.³

School districts are instructed to be mindful of disputes between a parent(s) and child over gender identity and expression. The Guidance references support services including the New Jersey Department of Children and Families, as well as the New Jersey Department of Education’s “Child Abuse, Neglect, and Missing Children” web page. Districts are expected to discuss with transgender students the risks associated with inadvertent disclosure of their gender identity to parents as a result of other students discussions with parents in their homes, or as a result of participation in some activities.⁴

After confidential discussion with a student, school districts shall ensure that each transgender student is addressed in school by the chosen name and pronoun. School districts shall issue district student documentation, such as student ID cards, in the name chosen by the student. A transgender student shall be permitted to dress in accordance with the student’s gender identity. Importantly, a district policy must ensure a safe and supportive environment. Among other significant requirements of district transgender policies are:

1. Districts must comply with the Anti-Bullying Bill of Rights Act found at N.J.S.A. 18A:37-15, et seq.
2. Districts should provide staff with sensitivity and respect training concerning transgender students.
3. Social and emotional concepts should be incorporated into school culture and curricula.
4. School districts can employ a variety of professionals such as psychologists and counselors, to provide needed emotional support for students.
5. Dress codes must be enforced for transgender and non-transgender students in an equal manner.
6. School districts shall honor a student’s chosen gender identity and shall not require any documentation to support the same.
7. A school district’s obligation not to discriminate on the basis of gender identity requires districts to provide transgender students equal access to educational programs and activities, even under circumstances where other students, parents, or community members object.⁵

School districts cannot disclose information that might reveal a student’s gender identity except as permitted by law. Schools are encouraged to work with such students to develop a confidentiality plan. If there is a specific or compelling need to disclose a student’s gender identity, such as for reasons of health and safety, the school district should inform the student first. Revised regulations for anti-bullying do require districts to take into account the circumstances of the incident when notifying parents.⁶

Districts must also comply with the requirements of the Family Educational Rights to Privacy Act, FERPA (34 C.F.R. 99.31(a) (1)), and must make every effort to ensure that school officials only obtain access to those education records in which they have a legitimate educational interest.

School districts must allow students to participate in school activities such as gender-segregated classes or activities in a manner consistent with their gender identities. Districts should also support student clubs and programs which support LGBTQ students. Access to bathrooms and locker rooms shall be afforded in accordance with a student’s gender identity.

School administrators are urged to consult the Guidance directly for more details. The New Jersey Department of Education expects all school districts to update existing policies to ensure compliance with the Guidance. In so doing, boards and school administrators should work closely with their board attorneys.

¹ Transgender Student Guidelines for School Districts, https://nj.gov/education/students/safety/sandp/transgender/, at 2.

² Id. at 2.

³  Id. at 2-3.

⁴  Id. at 3.

⁵  Id. at 4.

⁶  N.J.A.C. 6A:16-7.7(a)2viii(2).