You may recall that in May 2016, the U.S. Departments of Education and Justice issued a Dear Colleague Letter addressing the rights of transgender students and then rescinded it less than a year later in February 2017. The New Jersey Department of Education (“NJDOE”) took matters into its own hands and issued a guidance document to school districts regarding transgender students on September 27, 2018. The purpose of the guidance document is to assist in creating an inclusive environment for transgender and gender nonconforming students and to ensure that these students receive equal educational opportunities.
The NJDOE advises that a school district must accept a student’s gender identity. A student is not required to demonstrate any medical diagnosis or treatment. Similarly, a student is not required to obtain a legal name change. The school district should refer to the student by the student’s preferred name and pronoun.
Further, parental consent is not required for a student to assert a gender identity. Notably, the NJDOE advises that a school district does not have an affirmative duty to notify the parent regarding the student’s gender identity or expression.
With regard to confidentiality and privacy, the NJDOE reminds school districts of such obligations under the Family Educational Rights and Privacy Act (“FERPA”), N.J.S.A. 18A, and N.J.A.C. 6A. The NJDOE further advises that a student’s transgender status must be kept confidential except for in narrow circumstances permitted by law, such as to protect the health and safety of a student, during the course of an harassment, intimidation, and bullying investigation, or to a school official with a legitimate educational interest.
The NJDOE recommends that once a student expresses a preference to be called a name different than the student’s birth name, the student’s records containing the birth name should be kept in a separate, confidential file. Unless directed otherwise by the student, all other student records, including attendance records, transcripts, individualized education plans, etc., should be updated with the student’s chosen name and gender pronoun.
With respect to gender-segregated classes or athletic activities, students must be permitted to participate in such activities consistent with their gender identity. Students must have access to restrooms, locker rooms, and changing facilities in accordance with their gender identity. A transgender student who feels uncomfortable using a sex-segregated restroom should be provided with a safe and adequate alternative, such as a unisex restroom or the nurse’s restroom. For those non-transgender students who feel uncomfortable, schools should should provide them with a similar alternative.
The NJDOE advises that school districts must develop and update their policies and procedures to ensure a safe and supportive learning environment free from discrimination and harassment for transgender and gender nonconforming students. The NJDOE also recommends that social and emotional learning concepts be incorporated into school culture and curricula.
The complete guidance document from the NJDOE can be found here.
