A student is struggling as to when, with whom and to what extent to share the student’s gender identity. The student finally discloses this information to a staff member, requests that the staff member and others refer to the student by a different name and/or pronouns, but requests that this information not be shared with the student’s parents. The student’s parents subsequently inquire of the staff member as to their child, including raising specific questions about the child’s gender identity. How does the staff member respond?
This and countless other similar scenario are becoming more and more prevalent as more students identify as transgender, non-binary or gender expansive. However, as school districts look for guidance and resources on how to protect transgender, non-binary and gender expansive students, they often find themselves between a rock and a hard place concerning whether to disclose such information to the student’s parents.
On one side of the equation is the school district’s duty of confidentiality (student privacy). School districts work hard to ensure that schools are safe places where students can trust school staff. Why would students confide in school staff if they are concerned the information they share will be shared with others without their consent? Additionally, while most pupil records and information maintained by a school district is subject to disclosure to a student’s parents, Wisconsin’s pupil records law includes several exceptions to that rule with respect to records and information relating to an adolescent child’s reproductive health, alcohol or drug abuse counseling and HIV test results. The argument in favor of non-disclosure is that transgender, non-binary and gender expansive students have the right to decide when, with whom and to what extent to share private information, including their gender identity.
On the other side of the equation is a parent’s right to know what is going on with their child. Sharing private student information with parents and perhaps other school staff is imperative when a student’s safety is in question (e.g., sexual behaviors, self-harm, drug use or threats to self or others) and may be helpful to assist the student with mental and physical health challenges, as well as decision making concerning participation in curricular and extra-curricular activities. The argument in favor of disclosure is that parents have the right to information concerning their child so they are able to make important decisions on behalf of their child including, for some parents, the right to guide their child in a religion that might maintain a specific position about an individual’s transgender, non-binary or gender expansive status.
This is the rock and the hard place – Students have a right not to be compelled to provide personal and medical information to school officials and school officials must be cautious about disclosing personal information about a student’s transgender, non-binary or gender expansive status without the student’s consent (possibly even to parents), whereas parents have a right to information maintained by school districts about their children. The consequences of responding in the wrong manner (non-disclosure v. disclosure) are significant, as disclosing certain confidential student information to parents may violate state and federal privacy laws.
Recent guidance from Dane County seems to suggest that courts are leaning toward prioritizing parental rights (disclosure) over student rights (non-disclosure) in Wisconsin (especially where parents affirmatively request such information):
In April 2018, the Madison Metropolitan School District (MMSD) adopted “Guidance and Policies to Support Transgender, Non-Binary & Gender-Expansive Students” (the “Guidance and Policies”). The Guidance and Policies specifically provide, in relevant part:
The District shall ensure that all personally identifiable and medical information relating to transgender, non-binary and gender expansive students shall be kept confidential in accordance with applicable state, local and federal privacy laws. School staff shall not disclose any information to that may reveal a student’s gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure.
Transgender, non-binary and gender-expansive students have the right to discuss and express their gender identity and expression openly and to decide when, with whom and how much to share with private information. If a student chooses to use a different name, to transition at school, or to disclose their gender identity to staff or other students, this does not authorize school staff to disclose a student’s personally identifiable or medical information.
. . .
All staff correspondence and communication to families in regard to students shall reflect the name and gender documented on Infinite Campus unless the student has specifically given permission to do otherwise. (This might involve using the student’s affirmed name and pronouns in the school setting and their legal name and pronouns with family).
. . .
Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in MMSD systems.
In February 2020, the Wisconsin Institute of Law & Liberty (WILL) filed suit in Dane County Circuit Court against MMSD, on behalf of a group of fourteen (14) parents, challenging the adoption and implementation of the Guidance and Policies as well as subsequent refusal to alter the same. WILL contended that the Guidance and Policies violate the right of parents to make important healthcare decisions on behalf of their children and, for some parents, religious rights.
After filing suit, WILL filed a motion for injunctive relief pending its appeal of an earlier Dane County Circuit Court decision denying WILL’s request for the parents to be able to proceed anonymously. Dane County Circuit Court Judge Frank Remington partially granted WILL’s motion for injunctive relief pending appeal, stating:
Defendant Madison Metropolitan School District is hereby enjoined, pending Plaintiff’s appeal, from applying or enforcing any policy, guideline or practice reflected or recommended in its document entitled “Guidance & Policies to Support Transgender, Non-Binary & Gender-Expansive Students” in any manner that allows or requires District staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school, including information about the name and pronouns being used to address their children at school. This injunction does not create an affirmative obligation to disclose information if that obligation does not already exist at law and shall not require or allow District staff to disclose any information that they are otherwise prohibited from disclosing to parents by any state or federal law or regulation.
John and Jane Doe 1, et al. v. Madison Metropolitan School District, et al., Dane County Circuit Court Case No. 20202CV000454 (Remington, September 28, 2020).
The rights of transgender, non-binary and gender expansive students is an emerging area of law. The Dane County Circuit Court Decision, above, finds that school staff are required to disclose to parents information concerning their child’s transgender, non-binary or gender expansive status, but only if the parents affirmatively request such information. At this time, this Decision is only binding as to MMSD, but it does offer some insight as to how other Wisconsin courts may rule. That being said, the most effective way for school districts to comply with their legal obligations is to develop effective policies that take into account the legal rights of transgender, non-binary and gender expansive students as well as the legal rights of their parents. Such policies may need to include a requirement that school district staff encourage students to communicate with their parents about their gender identity as well as a warning to students that school district staff may not be able to maintain confidentiality with regard to such information.
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Tony J. Renning
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