Over the past few months, our law firm has received several questions regarding the privacy rights of transgender students. Here is a brief "Question & Answer" article regarding this topic.
Q. Do other individuals in the school community (such as other parents or the media) have a right to know about a student’s gender transition?
A: One of the most common questions that arises when a student transitions in school is whether others in the school community have a right to know about the student’s gender transition. The simple answer is “no.” A student’s transgender status, legal name or sex assigned at birth is confidential medical information and protected personally identifiable information, and disclosure of that information may violate the school’s obligations under the Family Educational Rights and Privacy Act (FERPA) or constitutional privacy protections. Given the level of discrimination transgender people may experience, sharing that information could also expose a student to harassment and abuse from peers, educators and school staff. Absent an explicit legal obligation or express permission from the student and family, this information should not be shared with anyone, including other parents and school personnel, and the school and district should implement safeguards to prevent such disclosures.
Some students and families want to be more open with the school and community about the transition process, which could include, for example, sending a letter home to parents or setting aside time during a class period for the student to discuss their plan for a gender transition. Others may prefer to share this private information with a select group of people to ensure that the student has a support network at school. Regardless of how private a student or family ask the school to keep this information, that decision does not prevent the student from discussing their gender identity openly and deciding when, with whom, and how much to share.
Q: How does FERPA apply to transgender issues?
Every public school student has a recognized right to privacy at school protected by FERPA and, in certain situations, by the U.S. Constitution. FERPA protects education records and personally identifiable information contained in them from release except under certain circumstances, and allows a student and/or the parents access to those records. A student’s transgender status is an education record containing “personally identifiable information,” which would be protected from disclosure to others without the student’s and/or parent’s consent. If a student’s transgender status is included in his or her education records, parents of minor students have a right to see that information. FERPA does not preclude schools from otherwise sharing the transgender status of a minor student with the parents. Generally, however, a student’s transgender status is confidential information and should be protected as such by school officials.
Q: How should the school district respond to community inquiries?
A: A school district must be able to respond to negative reactions to a student’s public gender transition. The larger community can subject these students and their families to intrusions and even hostility.
Without speaking about the specific student - educators, administrators and other school staff can use these talking points to respond to questions or negative reactions from the school community:
• “I know this is new territory for many of us. Sometimes change is really challenging. Perhaps I can share some information with you about gender identity and transgender people?”
• “I can assure you that the safety, well-being and education of all students remain our highest priorities.”
• “Of course I can’t talk about any individual student, just as I would never talk about your child.”
• “Schools have always worked to support the needs of individual students in a variety of ways. Like we have always done, we are committed to supporting all of our students.”
Please keep in mind that many negative reactions may result from a lack of knowledge or familiarity with the idea of transgender people, particularly transgender youth. While a public transition might make others feel uncomfortable, that discomfort does not outweigh the student’s need to be private, safe and supported.
Q: How should the school district respond to media inquiries?
Some parents who oppose the school’s decision to maintain student privacy or support transgender students may involve local media to pressure the school district to reverse course. The school district can choose not to respond to media inquiries. If the school district decides to respond, however, school officials can also use the above talking points.
Q: Once a school staff member has actual notice of a student’s transgender status, how should the school handle this information? Which members of the school staff should be informed? What information should be shared?
A member of the school staff should speak to the student and family about how they prefer that the information be handled. Some families may wish a student’s transgender status to remain private. Other families may prefer that the student’s status is shared, and even discussed in class. Under FERPA, it is appropriate and allowable for an educational institution to share student information with other “school officials,” including school staff, as long as they have a legitimate educational interest in that information. It may be necessary that an entire grade-level team or entire school staff be informed of a student’s transgender status to enable the student to be safe at school. But generally, you should obtain parental (or eligible student) consent before sharing the student’s transgender status with people who are not school officials.