Transgender school policies at center of New Jersey legal fight. Here's what we know

Should parents be alerted if their child changes gender identity at school, a decision school leaders say would affect which bathroom the student uses, their permanent record, and the sports team they play on?

Or would alerting parents without the child's consent potentially endanger the student if their parents do not support the decision?

That is the heart of the debate between two New Jersey factions taking the battle to court. The school districts of Marlboro, Manalapan-Englishtown and Middletown are trying to adopt policies that put more pressure on school authorities to notify parents, but New Jersey Attorney General Matthew J. Platkin says the policies violate New Jersey's Law Against Discrimination.

What the courts say

The New Jersey Law Against Discrimination applies not only to employers, but to public schools, said Katie Eyer, a professor of anti-discrimination law and expert in LGBTQ+ rights at Rutgers Law School.

The argument between transgender students and parents rights advocates is not unique to New Jersey, she said.

In cases playing out across the nation, parents say not being informed by the school of their children's changed identity violates their due process rights under the 14th Amendment of the Constitution. They cite the due process clause — which protects a person's life, liberty and property from government seizure without due process — as extending to their rights to direct the upbringing and education of their children.

"There have been a series of lawsuits across the country by parents raising precisely this type of affirmative constitutional claim," Eyer said.

In 1923, the U.S. Supreme Court sided with parents who wished to teach their children the German language despite a ban on German language instruction created by Nebraska officials. The court said the parents had rights under the due process clause to raise their children as they saw appropriate, according to the American Bar Association.

Now, the due process clause is being used by parents who oppose transgender student policies that allow students to use bathrooms, pronouns and names of their choosing, and not inform parents unless students consent. In August, three Maryland parents lost a lawsuit challenging a school district's transgender student parent notification policy after they said the policy violated their due process rights, according to Reuters.

"Parents certainly do have the right to decide for themselves how they are going to raise their children," said Eyer. "At home, they have the right to decide where they want to send them to school, but the courts have been fairly clear that they don't have a right to direct the minutiae of how schools are engaged day-to-day with students."

She added: "If parents, with all their conflicting ideas about how schools should interact with their children and what type of curriculum they should have… had a constitutional right to control what schools did, courts would be very busy and nothing would ever happen in the schools."

School policies that require notifying parents without a transgender student's consent do violate New Jersey's Law Against Discrimination, the law professor said.

The policies are "very specifically targeted at transgender youth and… revealing things about their life at school to their parents in a proactive way, in a way that other kids at school aren't being policed for their behavior," she said.

"Kids at school do things all the time that their parents might or might not want… to know about," Eyer said. "And this policy really singled out one particular group of those kids for… surveillance and disclosure to their parents."

Why are LGBTQ+ advocates worried?

LGBTQ+ advocates worry that if a transgender student is "outed" against their will to an unsupportive parent or guardian, they could be neglected or abused.

A survey of more than 1,800 youth between ages 14 and 18 found that transgender adolescents reported higher rates of abuse than cisgender peers, according to a 2021 study by the University of Pittsburgh published in the journal Pediatrics. Of the transgender teens surveyed, 73% reported psychological abuse, 39% reported physical abuse and 19% reported sexual abuse, according to the study.

In addition, transgender youth are also more likely to report drug use and are more likely to attempt suicide than cisgender peers, according to the Centers for Disease Control.

Nearly 2% of high school students identify as transgender, and 35% of those students attempt suicide at some point in their youth, according to the CDC.

Parents rights groups say law is on their side

Many parents say schools should be required to notify them if their child changes gender identity.

"As a K-8 only district where our average students age is eight, (we) believe parental involvement in a child's education is paramount," said Manalapan-Englishtown Regional Board of Education President Brian Graime.

"Our amended policy would allow students in 6-8th grade to have those accommodations stay in place even if the parents disagree," he added. "This board recognizes that the health and safety of our children is critical and if any child making these requests feels uncomfortable with parental notification, then we will work with them on a case by case basis to determine how to best accommodate the request of the child."

Bruce Padula, the board attorney for both Manalapan-Englishtown Regional and Middletown Township school districts, said the law is on their side.

"It is simply not discrimination to tell parents if their child decides to change the gender in their student records," Padula said in a statement. "The law supports our position."

A majority of parents agree. A Monmouth University survey found that 81% of New Jersey parents say middle and high schools should notify parents if their child changes gender identity. Support for required parental notification was stronger among New Jersey Republicans (92%) than Democrats (61%), according to the poll.

"Most New Jerseyans, like most Americans, do not recognize transgender identity in a broad sense," said Patrick Murray, director of Monmouth University's Polling Institute. "This is reflected in how they view these issues being dealt with in schools."

Attorney General says outing students is discriminatory

Platkin, the state attorney general, said school boards that require parental notification when a student changes gender identity are violating New Jersey's Law Against Discrimination, which protects people from discrimination based on age, sex, race, national origin, sexual orientation, and gender identity or expression.

Earlier transgender student policies as these schools did not require parental notification, Platkin said. The policies "were uncontroversial and widely accepted until just a few months ago, protected the rights of transgender students and permitted schools to inform parents about their children based on individualized and non-discriminatory assessments of a particular child’s needs and circumstances," the attorney general said in a statement.

By requiring parental notification of a student changing gender identity or expression, the policies "likely… violate the rights of our most vulnerable residents by discriminating against them on the basis of gender identity or expression."

This week, a spokesperson for Platkin said no court dates have yet been set to hear the lawsuits filed against Manalapan-Englishtown Regional, Middletown and Marlboro school districts.

In August, a Superior Court judge in Monmouth County blocked the amended policies from taking effect until the matters are heard in court.

"We are pleased that the Superior Court has granted a preliminary injunction prohibiting the new policies enacted by Middletown, Marlboro and Manalapan-Englishtown Boards of Education from entering into effect while the cases challenging those policies are ongoing," Platkin said in a statement at the time.

Amanda Oglesby is an Ocean County native who covers education and the environment. She has worked for the Press for more than 15 years. Reach her at @OglesbyAPP, aoglesby@gannettnj.com or 732-557-5701.

This article originally appeared on Asbury Park Press: Transgender student policies at center of NJ schools fight