By Jordan Shead, Associate Counsel, NJPSA
This past spring, a number of New Jersey school districts implemented policies that mandate parental notification upon learning that a student identifies as transgender or is changing their gender identity or expression. Hanover Township was the first, followed by the districts of Middletown, Manalapan and Marlboro. The Hanover and Marlboro policies require parental notification upon learning of a child’s change in LGBTQ+ status, while the Middletown and Manalapan policies require parental notification when a child requests a public accommodation relating to a change in gender identity. For all four policies, the only exception is if the district’s staff members have reason to believe notification could cause the parent or guardian to harm the child.
This represents a marked change from the previous policies that followed the NJDOE Guidance that school staff are to maintain confidentiality with students about their gender identity and may not disclose such information except as allowed by law. The Guidance advises schools to work with students to create an appropriate plan to address a student’s transgender or transitioning status. Students are to be informed and given the opportunity to self-disclose if disclosure is required by some compelling need, such as a HIB investigation.
The adoption of the policies allowing for parental notification prompted immediate action by the State Attorney General.
In Hanover, the complaint was filed by both the Attorney General and the Director of the Division of Civil Rights. They sought to prevent the new policy from going into effect. The contention was that the policy treated LGBTQ+ students differently from their peers by requiring parental notification without consent for only such students. As a result, the complaint alleged that the policy violated the New Jersey Law Against Discrimination’s (NJ LAD) straightforward prohibition against “explicit facial discrimination.” But, even if the policy were facially neutral, the complaint went on to allege that requiring parental notification of gender identity would still “disproportionately” affect LGBTQ+ students as such students would more likely suffer harm from parental notification than their peers.
On May 30, 2023, a judge of the Superior Court ordered the Hanover School District to revisit the policy and rewrite it so that it did not discriminate against gay, transgender and non-binary students. Until then the court ordered that the district maintain the status quo.
Following the action of the Hanover School District, the districts of Middletown, Marlboro and Manalapan took similar action to amend their respective policies.
The amended policies that each district adopted, all on June 20, 2023, vary slightly.
Marlboro’s amended policy states “in the spirit of transparency and parental involvement, the district will notify a student’s parent/guardian of the student’s change in gender identity or expression except where there is reason to believe that doing so would pose a danger to the health or safety of the pupil.” The policy requires that the school counselor first notify and collaborate with the student before any discussion with the student’s parent. Marlboro is a Pre-K through 8th grade district.
Manalapan is also a Pre-K through 8th grade school district. The amended policy states that for grades 6-8, the school district shall accept the student’s gender identity, and no parental consent is required. However, for grades Pre-K through 5, the student’s parent or guardian decides the student’s gender identity. If a student only has a conversation about a change in their gender identity and nothing more, they are entitled to confidentiality. However, if a student requests a public social transition accommodation, the school must notify the parent. Such accommodations include public name/identity/pronoun change, bathroom/locker room accommodation, or club/sports accommodation. Absent any indication of abuse or neglect, the school would notify the parent or guardian according to the policy. However, before disclosure, the student is to be given the opportunity to personally disclose the information.
Middletown is a Pre-K through 12th grade school district. Like Manalapan, its amended policy provided that mere conversations between a student and staff about gender identity are entitled to confidentiality. However, if a student requests a public social transition accommodation, the policy requires that the student’s parents be notified, provided that there is no documented evidence that doing so would subject the student to abuse.
In each of these districts, their previous policies followed the 2018 DOE guidance that there is no affirmative duty for any school district staff member to notify a student’s parents of the student’s gender identity or expression.
Responding to the contention of the Attorney General that the policies were facially discriminatory against LGBTQ+ students, each of the districts objected, stating that their policies did not treat transgender or gender non-conforming students any differently than cisgender students because any student who changes their gender identity or expression is subject to the policy. Further, the districts contended that it is inappropriate to keep parents in the dark about their children’s sexual identity.
Notwithstanding these arguments, on August 18, 2023 a Superior Court Judge issued a preliminary injunction and ordered that the defendant school districts preserve the status quo by following their previous policies in accordance with the DOE Guidelines. In each of these districts the prior policy provided the following:
The school district shall accept a student’s asserted gender identity; parental consent is not required. A student need not meet any threshold diagnosis or treatment requirements to have his or her gender identity recognized and respected by the school district, school or school staff members. In addition, a legal or court ordered name change is not required. There is no affirmative duty for any school district staff member to identify a student’s parent of the student’s gender identity or expression.
The court’s preliminary injunction is to maintain the status quo – the prior policy – until the underlying action brought by the Attorney General challenging the policies requiring parental notification are resolved.
Separately, the Hanover School District, still awaiting the final outcome on its revised policy requiring parental notification, voted at its meeting on September 11, 2023 to repeal the policy that it had adopted in 2019 which followed the guidance that had been issued by the NJ DOE; guidance that specifically provided that there is no affirmative duty to require parental notification. As a result, the Hanover School District is now without any policy detailing specific protections for LGBTQ+ students. The Office of the Attorney General quickly responded, writing a letter to the judge overseeing the Hanover matter stating that the repeal of the 2019 policy will create a “damaging free for all at the expense of LGBTQ+ students” and that it violated the judge’s prior order to maintain the status quo. A final decision in the Hanover case is expected in the coming weeks.
In the meanwhile, the substantive challenge by the Attorney General and the Division of Civil Rights to the parental notification policies in Marlboro, Manalapan and Middletown is proceeding before the Office of Administrative Law. The decision, whichever way it is decided, is sure to be the subject of an appeal, the outcome of which will not occur for some time.
The one thing the courts have made clear is that until the ultimate issue of parental notification is sorted out, keep the status quo.