Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
We have a 14-year-old student here at my high school who has requested that we use the pronoun "she" and refer to her as "Carolyn Smith" (not the name she is actually requesting). The student's academic records in PowerSchool, however, list the student as "Charles Jones" (not her actual name). PowerSchool has assigned Charles Jones a State SSAID, which we use for all State reporting and record collection (e.g., grades, course schedule, attendance, discipline incidents, demographic records). Carolyn has further reported that her parents are unaware of her request, and she is adamant that we not share the request with her parents. To further complicate the matter, the student is a special needs student. Charles Jones (not Carolyn Smith) is the name of record on all IEP documents and in CT-SEDS.
Should we honor the request and change the name in PowerSchool and CT-SEDS without parent consent or any type of formal legal documentation?
Signed,
Betwixt and Between
Dear Betwixt:
There are some answers to your questions, but this is an evolving and challenging area of the law. All we can do here is our best.
At the outset, Legal Mailbag suggests that you focus on the practical reality with the student. Given that parents have access to school records, it is not possible to assure that the parents will not learn about changes in the school records made at the student's request. Is it not ultimately better for the student to share this information with her parents herself? Legal Mailbag is concerned for the possibility of a confrontation between the student and her parents if the parents learn of the student's request indirectly. Please do your best to explain to the student that maintaining confidentiality about her gender status may not be possible long term and ask her to reconsider her decision not to tell her parents.
That said, Legal Mailbag understands that these are tough, emotional issues, and that the student may ultimately still ask for a change in the school records. If such is the case, you will still have to respond to the student's request. The State Department of Education issued guidance on this issue in 2017 (Civil Rights Protections and Supports for Transgender Students: Frequently Asked Questions), and while we expect that the State Department of Education will issue updated guidance in the coming days, weeks or months, Legal Mailbag suggests that you follow the current guidance now, as described below.
In that Guidance, we read that school officials can honor a request by a transgender student to change school records:
If a transgender student requests a change to educational records to reflect the student's stated gender identity and chosen name, schools should correct student education records to accurately reflect the student's chosen name and gender identity, regardless of whether the student has completed a legal name change. Similarly, gender and name information reported in PSIS should reflect a student's stated gender identity and chosen name.
The Guidance even contemplates the situation you describe here:
There may be instances where a parent or guardian of a student who is under 18 disagrees with the student regarding the name, gender marker and pronoun to be used at school and in the student's education records. Current law does not provide a clear rule for school districts to follow as to whether a school should change a minor student's educational record at the student's request if the parents object. However, declining to use a student's chosen name, gender marker and pronoun simply because a parent/guardian objects would raise serious concerns under existing law and could cause severe psychological/emotional harm to the student.
Given the lack of a clear answer, the Guidance goes on to state:
In such instances, districts should refer to their legal counsel for guidance concerning their obligations under the law and focus on appropriately ensuring the well-being of the student in light of the dispute, including by referral to appropriate counseling and support services for the student and family.
Importantly, Legal Mailbag is here to entertain and inform, but Legal Mailbag does not serve as legal counsel to readers. Given that the best answer to these challenges will depend upon the specific facts of the situation at hand, it is advisable, as recommended, to confer with legal counsel in making these decisions. However, the danger of psychological harm to the student as cited in the Guidance must be taken seriously, and school officials have the right to change school records in response to a student's request.
Finally, Legal Mailbag notes that FERPA may also come into play because it provides that a parent of a student under 18 years of age may request amendment of school records that the parent believes to be "inaccurate, misleading or in violation of the student's rights of privacy." 34 C.F.R. § 99.20. A parent may make such a request either to conform school records to a student's gender identity, or to change school records back to reflect the student's gender as determined by birth.
Under FERPA, the decision whether to change the record pursuant to such a request ultimately remains with school officials. The required review procedures include the opportunity to request a change and an opportunity for a hearing if the district declines to make the requested change. The matter must be heard "within a reasonable time" after the request is made, and the decision must be made by an official who does not have a "direct interest" in the matter, though the hearing officer may be an employee of the district. If, after hearing, the district does not make the requested change, it must inform the parent of his or her right to place a statement in the record commenting on the information or stating why he or she disagrees with the record. When that record is then disclosed by the school district to third parties, any such statement by the parent must also be disclosed. See 34 C.F.R. § 99.21.
Legal Mailbag recognizes that requests such as Carolyn's can indeed put school officials "betwixt and between." But the guiding star must always be the welfare of the student.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
