Stop Right There! Understanding the Legal Problems in Recent BOE Policies Related to Gender Identity, Gender Expression and Sexual Orientation

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In recent months, a great deal of media attention has been focused on a small number of New Jersey school districts that have attempted to implement new school board policies related to parental notice requirements when officials receive certain information regarding a student’s gender identity, or gender expression.  While these policies have been defended under the umbrella of “parental rights” the State Attorney General has been able to successfully seek preliminary injunctions against their implementation based on the argument that the policies violate the New Jersey Law Against Discrimination, would result in both disparate treatment and disparate impact for students based on a protected class, and the implementation of the policies would result in irreparable, and potentially life-threatening, harm to students.

Other BOE policies and district actions also raise potential violations of NJLAD, and more importantly, may contribute to an unsafe learning environment for LGBTQ+ students, including policies/practices related to the removal of affirming symbols, removal of books from school libraries, and allowing students to opt out of certain portions of district curricula. 

In order to understand the issues involved, it is important to step back and understand the origins and evolution of the New Jersey Law Against Discrimination, and the heightened dangers facing LGBTQ+ students in our current societal context.


The Evolution of NJLAD

First enacted in 1947, the New Jersey Law Against Discrimination is one of the strongest anti-discrimination laws in the nation.  It protects adults and children alike from discrimination based on a long list of protected characteristics, and its protections extend to all places of public accommodation, which specifically include all public schools.  Protected classes include race, ethnicity, gender, religion, and disability, to name a few.  In 1991, the law was amended to prohibit discrimination based on sexual orientation and in 2006 was revised to include gender identity and gender expression.  The Legislature anticipated that questions may arise related to the use of facilities such as locker rooms and restrooms.  So the 2006 revision made clear that individuals had the right to access any sex-segregated facilities, such as restrooms or locker rooms, based on the individual’s gender identity.  


State Guidance

Seeing the need for additional guidance to help school districts properly understand and implement the NJLAD as it relates to gender identity and gender expression, the Legislature passed a law, P.L. 2017, c. 137, requiring the NJDOE to issue guidelines for school districts, and spelled out specific provisions that had to be incorporated into the new guidelines.  Among the elements required to be in the guidelines was a directive to work directly with the student to develop a confidentiality plan, and to revise any district-issued identification to correspond with the student’s wishes regarding student names and pronouns, when the request related to student gender identity.  

The NJDOE issued the required guidelines in 2018.  While they are “guidelines” they represent the State’s interpretation of policies and protocols that are aligned with best practices and are required to comply with NJLAD.  The guidelines make clear that districts need to work directly with the student and determine the student’s wishes regarding the release of information to others.  The guidance assumes that the district will revise student records, including IEPs, transcripts and other NJSMART records, unless doing so would result in the outing of the student to parents.  It makes clear that a student’s wishes should govern issues such as the release of information regarding gender identity, expression or sexual orientation, the use of pronouns, as well as access to locker rooms and restroom facilities.  The guidance directly addresses potential conflicts that may arise between student and parent wishes, and makes clear that school officials should honor what the student is saying regarding gender identity, gender expression and sexual orientation.


Parental and Student Rights

While recognizing and honoring parental rights has always been a core legal principle in our State, those rights are necessarily balanced against other critical interests.  For example, all New Jersey public schools are required to implement New Jersey’s Student Learning Standards.  While parents have the right to opt their child out of participating in aspects of the health standards, parents do not have the right to opt out of exposure to the other state required standards, which do include a review of issues related to diversity, equity, and inclusion, including issues related to gender identity, gender expression and sexual orientation. As another example, even if a parent directs that a certain school administrator not be allowed to interview their child, state and federal law make clear that school officials may still interview students as needed to ensure a safe learning environment for all students.

Related to gender identity and expression, it is important to note that when the Legislature mandated the NJDOE to develop guidelines for schools for addressing the needs of transgender students, the Legislature mandated that the guidelines ensure that schools work directly with the student to develop a confidentiality plan, as opposed to working directly with the parent or guardian.  Accordingly, the guidelines make it clear that the district is to honor what the student says regarding gender identity, even in cases where the parent disagrees or the parent is not aware of the student’s gender identity.


Understanding the Stakes

As schools look to address the needs of LGBTQ+ students, it is important to understand the extraordinary stakes that are involved.  According to data provided by the New Jersey Division on Civil Rights, and drawn from studies by The Trevor Project and The Human Rights Campaign:

  • Only 24% of LGBTQ youth say they can “definitely” be themselves at home, and only 32% of transgender and nonbinary youth found their home to be gender-affirming.
  • 48% of LGBTQ youth say that their families make them feel bad for being LGBTQ. 67% hear their families make negative comments about LGBTQ people.
  • LGBTQ youth experience homelessness at more than twice the rate of their non-LGBTQ+ peers. Young Black men and transgender people experience the highest rates of homelessness.
  • LGBTQ youth are 7 times more likely to participate in survival sex than their non-LGBTQ+ peers.
  • LGBTQ youth are nearly 3 times more likely to attempt suicide than their non-LGBTQ+ peers.


Preliminary Injunctions Granted

In his August 18 ruling issuing preliminary injunctions against three of the school districts looking to implement new requirements for parental notification when students reveal their gender identity or sexual orientation, Judge Baumann pointed out that, on the question of irreparable harm, “[t]here can be little dispute that some of that evidence of disparate impact, to include mental health issues, suicide, illicit drug dependency, and infliction of physical or emotional harm by immediate family members, constitutes irreparable injury which may result if restraints are not imposed preliminarily.”  The decision cites the disparate treatment resulting from a policy that requires parental notification only for students who are transgender, gender non-conforming or non-binary, and the disparate impact noted above, given the increased likelihood for harm that would result from such notification.  While each of the policies in question would provide an opportunity for students to notify parents prior to the school district doing so, the Court noted the danger is this so-called “choice” being given to students, by comparing it to the circumstances in Sterling v. Borough of Minersville, 232 F.3d 190 (3d Cir. 2000) where the police were found to have violated an 18 year old’s constitutional rights by informing the youth that if he did not inform his grandparent that he was gay, the police would, after which the youth committed suicide. A policy that potentially invites such an outcome creates a specter of irreparable harm militating in favor of preliminary restraints.


Other Policies that Undermine Support for LGBTQ+ Students

In addition to parental notice policies discussed above, other disturbing trends are also being seen in New Jersey public schools involving issues such as the removal of affirming symbols from schools related to LGBTQ+ status, banning of books from school libraries in order to reduce or eliminate access to information on gender identity or sexual orientation, and allowing parents to “opt their child out” of exposure to curriculum on topics that the parent disagreed with, including discussions related to gender identity, gender expression and sexual orientation.  


Guidance from AG and Acting Commissioner of Education

These disturbing trends prompted the Attorney General and Acting Commissioner of Education to jointly issue guidance on June 26, 2023 urging school districts to continue to promote a safe, inclusive and affirming environment for all students.  The guidance, encourages all New Jersey schools, school boards, and administrators to: 

  • continue to develop and implement initiatives to counter bias; to continue to display inclusive markers, flags, and symbols in and around their buildings; to continue to ensure students have access to books representing a diversity of experiences and identities; and to
  • continue to implement and comply with the state’s anti-bias curricula requirements regarding race, gender, LGBTQIA+, disability, and diversity.

The guidance further notes that it is consistent with NJLAD:

  • for a teacher to display a LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex, and asexual) safe zone sticker, or 
  • for a school library to include books and other materials that reflect the experiences and identities of children and families of all races, sexual orientations, and gender identities.


Potential Legal Liability for School Districts

While it may be tempting to seek to appease those complaining about district policies related to gender identity, gender expression and/or sexual orientation in order to avoid potential litigation, the risk of legal liability increases significantly if districts fail to act in good faith to implement the New Jersey Law Against Discrimination and take actions to protect against foreseeable dangers.  For example, in 2007, the New Jersey Supreme Court made clear in the case of L.W. v. Toms River, that districts may be civilly liable for harm to students under NJLAD if they fail to take measures that are reasonably calculated to end harassment that they knew or should have know about.  In that case, a student had been subjected to bullying based on perceived sexual orientation from elementary school to middle school and into high school.  The Court held that in such a case involving systemic discrimination, districts must do more than respond after the fact and impose consequences under the Code of Student Conduct, and instead must act proactively, and look to address the larger school climate.  As the June 26 letter from the Attorney General and Commissioner of Education makes clear, the school climate can be negatively impacted for LGBTQ+ students when districts remove affirming symbols and access to library resources, and fail to educate all students about the dangers of discrimination linked to protected classes such as gender identity, gender expression and sexual orientation. 


Next Steps

In light of the above, New Jersey school districts should:

  • Continue to adhere to NJDOE Guidance regarding Transgender Students;
  • Continue to implement the New Jersey Student Learning Standards;
  • Encourage symbols of affirmation in schools to signal supportive environment;
  • Ensure sound protocols for reviewing concerns raised regarding access to books/other information;
  • Monitor data on HIB, code of conduct, risk/threat assessment, participation in extracurriculars, school climate; and
  • Work to ensure that all students have access to caring adults, “go to” persons in times of need.