• Maintaining Confidentiality of Transgender Student Records 


    With the state-mandated implementation of the Comprehensive Health and Physical Education Standards (the Standards),[1] the public has shown renewed interest in how districts will implement the Standards, with particular attention focused on the requirement of making transgender and gender non-conforming students feel safe and supported. Last month, the Lawrence Township Board met with some public opposition when it was reviewing its Transgender Student Policy.[2] One person opined, during the public comment period of the meeting, that the curriculum encourages students to question their gender and moves them along a “slippery slope.”[3]

    The vulnerability of the transgender population, in general, was also highlighted on November 16, 2022, when Gov. Murphy signed Executive Order No. 311 (“EO”).[4] The intent of the EO is to further protect the confidentiality of name change orders by exempting these documents from production by the New Jersey Department of Treasury (“Treasury”) under the New Jersey Open Public Records Act (“OPRA”).[5] An individual’s name change is a critical step in gender transition and affirmation; transgender individuals who opt to legally change their name have legitimate reasons to keep the documentation private. On July 30, 2021, the New Jersey Supreme Court amended its rules to exempt all name change actions from production under OPRA.[6] However, N.J. Court Rule 4:72-4 still required that a certified copy of the name change order be filed with the Treasury Department. Once a name change order was filed with Treasury, the orders were not exempt from disclosure under OPRA. EO No. 311 exempts name change orders filed with Treasury after December 31, 1948, from disclosure. The intent of EO No. 311 is to help protect the privacy and safety of transgender, nonbinary, and gender non-conforming New Jersey residents.

    For school district purposes EO No. 311, underscores the importance of maintaining the confidentiality of the school records of transgender, nonbinary, or gender non-conforming students. N.J.S.A. 18A:36-41 requires schools to have policies in place which provide for the confidentiality and privacy concerns of these students, including ensuring that school staff members do not disclose information that may reveal a student’s transgender status, except as permitted by law. In addition, school administrators are required to work with transgender students to create an appropriate confidentiality plan regarding the student’s transgender or transitioning status. Districts must also create and implement procedures for school records, including maintaining a separate official record for each student that contains the student’s legal name and “biological gender.” Districts are required to change a student’s official record upon receipt of appropriate documentation.

    Similarly, districts must have a policy ensuring that transgender students are addressed at school with the names and pronouns that correspond to their gender identity, regardless of their legal name. Likewise, districts must issue school documentation, such as student identification cards, with the name the student prefers to correspond to their gender identity.[7]

    It is also important to remind district personnel that the Family Educational Rights to Privacy Act (“FERPA”)[8] requires a parent/guardian’s written consent to disclose any personally identifiable information from a student’s record. Alternatively, FERPA does permit school districts to disclose “directory information” without written consent. Parents/guardians and older students can prevent district disclosure of student directory information by opting out of disclosure in accordance with district procedures.

    Under FERPA, directory information is defined as information contained in a student’s education record that would not be considered harmful or an invasion of privacy if disclosed. Examples of directory information are the student's name; address; telephone listing; email address; photograph; date and place of birth; grade level; enrollment status; dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees; honors; awards; and the most recent educational agency or institution attended.[9]

    In New Jersey, districts are not permitted to disclose personally identifiable information on a district website without parental consent.[10] For this purpose, New Jersey defines personally identifiable information as student names; student photos; student addresses; student email addresses; student phone numbers; and locations and times of class trips. This is inconsistent with FERPA.

    Notwithstanding the legislative and regulatory requirements to protect the privacy of transgender students, preventing these students from being harassed in school remains challenging. For example, irrespective of the existing privacy safeguards, in G.C., o/b/o minor child, B.C., Petitioner, v. Lacey Township Board of Education, Ocean County,[11] the mother of a transgender student ("T1"), reported that her son was harassed by a group of boys while using the boys’ bathroom. The boys told T1 (T1 is a transgender student who identifies as male) that since he was a girl, he should be using the girls’ bathroom. The district investigated. Through the surveillance video, the district determined that B.C. and his friend, R.C., exited the boys’ bathroom just before T1. Upon being interviewed by the high school’s anti-bullying specialist (ABS), B.C. acknowledged that he said that girls should not be permitted to use the boys’ bathroom, but he intended to say it to himself. R.C. confirmed B.C.’s statement. The ABS concluded B.C. committed an act of harassment, intimidation, and bullying ("HIB"). The principal advised B.C.’s parents of the determination. B.C.’s parents appealed to the board. The board affirmed the HIB finding, and B.C.’s parents filed a petition with the Commissioner of Education (“Commissioner”). The administrative law judge (ALJ), granted the board’s motion for summary judgment, upholding the board’s HIB finding.[12] The Commissioner concurred with the ALJ.

    Though following all relevant policies, statutes, and regulations will not eliminate all conduct that can undermine the privacy and security of transgender students, as in the case above, it can help decrease the incidence of transgender-related HIB. When school administrators are confronted with issues concerning the confidentiality of transgender students’ information, it is best to consult the board attorney.

    [3] Id.

    [4] https://nj.gov/infobank/eo/056murphy/pdf/EO-311.pdf

    [5] N.J.S.A. 47: 1A-1et seq.

    [6] N.J. Court Rule 1:38-3(f)(10).

    [7] N.J.S.A. 18A:36-41

    [8] 20 U.S.C. §1232g

    [9] 34 C.F.R. § 99.3

    [10] N.J.S.A. 18A:36-35

    [11] C# 234-22 (September 19, 2022).

    [12] Id. at 19.