Michael Torres Whether You Like It Or Not Guided by activists and flimsy legal reasoning, school districts are asserting a right to conceal children’s gender transitions from parents.
https://www.city-journal.org/article/transgender-secrecy-policies-at-public-schools
More than 10 million American children attend public school in districts that require employees to hide students’ gender transitions from their parents. The revelation of how widespread secrecy polices are comes thanks to a list compiled by the parental-rights advocacy organization Parents Defending Education. While the prevalence of these policies is alarming in itself, the philosophy underlying them is what parents should be most concerned about.
Districts are using legal theories pushed by activist groups like the Gay, Lesbian & Straight Education Network (GLSEN). Among the most important are that children have a federally guaranteed right to privacy from their parents in school, that the Fourteenth Amendment to the U.S. Constitution establishes children’s right to transition without the consent or knowledge of their parents, and that Title IX of the Education Amendments of 1972 protects transgender students from the “harassment” of school districts “outing” them to non-compliant parents. The Title IX theory, the most chilling, is supported by the radically progressive notion that parents represent a danger to the welfare of transgender children until they prove otherwise by providing “affirmation.”
School districts that buy into these theories are not merely embracing the idea that hiding children’s gender transitions from their parents is legal, but that divulging the information without the child’s consent is illegal and possibly perilous to the student’s safety. In Dover, Pennsylvania, for example, a mother of a middle school student castigated a local school board after discovering that school staff had been addressing her 12-year-old daughter with male pronouns for a year. School officials even sent the child to a hospital for an evaluation without informing the parents. When the mother confronted the school board, she was told that there was a law against informing her. School boards in Chico, California, New Castle, Maine, and beyond have said the same.
No such law exists, however—and the legal theories pushed by activist groups to legitimize secrecy policies are baseless.
The law that districts most commonly cite is the Family Educational Rights and Privacy Act (FERPA). That’s likely due to boilerplate policy language promulgated by GLSEN that claims FERPA establishes a child’s right to privacy from their parents. This interpretation of the law is also pushed by public education groups like the Pennsylvania School Counselors Association, which told a local media outlet that “Transgender and nonbinary students have a FERPA-protected right to privacy.”
Of the 16 districts Parents Defending Education lists from Pennsylvania, for example, all but three heavily lean on FERPA while using nearly identical language to GLSEN’s. “All students have a right to privacy and this right includes the right to keep one’s transgender status private at school,” Pittsburgh School District’s policy says. “Disclosing this information to other students, their parents/guardians, or other third parties may violate privacy laws, such as the Family Educational Rights and Privacy Act (FERPA).”
To the contrary: Congress enacted FERPA to enhance parents’ right to receive information about their children at school, not to have it withheld. LeRoy Rooker, former director of the U.S. Department of Education’s Family Policy Compliance Office, told Bethesda Magazine in 2021 regarding a district’s withholding information about a child’s transition: “There’s absolutely nothing in FERPA that would say they would violate FERPA by disclosing that to parents. The violation would be in not disclosing it if the parents request it.”
More importantly, a federal right of minors to privacy from their parents does not exist. “A minor’s right to privacy is traditionally held by the parents,” Will Estrada, president of the Parental Rights Foundation, said regarding a policy enacted by a California school district. He cited the 2000 Supreme Court case Troxel v. Tommie Granville, in which Justice Sandra Day O’Connor, citing the Fourteenth Amendment, affirmed, “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
Ironically, this same ruling dismantles the transgender activists’ own Fourteenth Amendment claim, because, as O’Connor explains, it is that very amendment that protects against “government interference with certain fundamental rights,” like those of parents. Thus, districts violate parents’ constitutional rights by deceiving them about their children’s professed desire to transition.
Perhaps the most aggressive legal claim made by proponents of secrecy policies, though, is that informing parents would violate Title IX of the Education Amendments of 1972. Kristina Moon, senior staff attorney at the Philadelphia-based Education Law Center, for example, claimed in a local news story that a Bucks County, Pennsylvania, district could be in “legal hot water” by requiring staff to refer to students by their given names and to inform parents of a request to change names or genders. Moon argued that “misgendering” a student can “be considered harassment” in violation of Title IX, and elsewhere cited the 2017 decision by the U.S. Third Circuit Court of Appeals in Doe v. Boyertown Area School District.
But Doe and related cases did not address the question of whether schools can withhold a child’s gender transition from parents. To the contrary, Doe was brought by non-transgender students who claimed that allowing transgender students into the bathroom of their choice created a sexually hostile environment. The court ruled that the school could allow transgender students access to the bathrooms of their choice without violating Title IX, which prohibits discrimination on the basis of binary sex. “Under the current practice,” the court reasoned, “the plaintiffs (and the other students at BASH) are not targeted on the basis of their sex because the School District treats both male and female students similarly. The practice applies to both the boys’ and girls’ locker rooms and bathrooms.” In December 2022, the 11th Circuit Court of Appeals upheld an opposite policy requiring that students use bathrooms that match their biological sex, based on similar Title IX reasoning. Taken together, the rulings suggest that districts may implement either bathroom policy without violating Title IX; they say nothing about mandating that schools deceive parents.
“Title IX only prohibits schools from discriminating on the basis of sex,” says Jennifer C. Braceras, director of the Independent Women’s Law Center and former member of the U.S. Commission on Civil Rights. “The statute itself refers in several places to ‘both sexes,’ meaning that schools may not treat members of one sex less favorably than members of the opposite sex. From this standpoint, the federal courts have rightly decided that, so long as schools do not disfavor either male or female students, they can develop whatever bathroom policies they think appropriate.”
According to Braceras, the binary nature of Title IX is critical when it comes to secrecy policies because, despite what activists or the Biden administration may say, informing parents that their child identifies as something other than his or her birth sex does not constitute unequal treatment of the two sexes. Nor does it constitute harassment under Title IX, which refers to sex-based mistreatment that is so severe, pervasive, and objectively offensive that it denies a student equal educational access. “The notion that Title IX requires schools to socially transition a child behind her parents’ backs is absurd,” Braceras continued. “No court has ever held that using a child’s given name or informing parents that their child is questioning his or her identity is harassment.”
Moon did not respond to a request for comment.
To transgender activists, the only binary of concern is “affirmation” versus “harm.” And many school districts are adopting the outlook that, until they confirm that parents are in the first camp, they run the risk of the second. The Central Kitsap School District near Seattle has a policy stating, for example, “For parents who are not supportive, or who are not aware of the student’s transition at school, referring to their name and pronoun could be very dangerous.”
GLSEN’s model policy thus tells districts to establish “plans” to use a student’s “prior” name in mail and correspondence to parents while creating a secondary system of documentation not explicitly governed by FERPA to house the student’s new name. This, they say, is to “ensure their safety.”
(As for safety: a recent study from the U.K. found that social transition in itself was not associated with better mental-health outcomes. The study also suggested the possibility that concealment of gender identity, including from parents, may actually contribute to a child’s distress. As it turns out, leading a double life might be destabilizing for children.)
Districts like Lower Merion School District in suburban Philadelphia seem to employ GLSEN’s model. “In general, the prerogative to assert the rights of the gender expansive and transgender students belong to the student and do not require additional parental/guardian consent unless the assertion of a right delineated in these guidelines implicate parental/guardian rights under the Family Educational Rights and Privacy Act or other applicable law,” the policy states. In other words, unless FERPA requires that a specific document be shown to parents, the district will hide it.
I asked each of the Pennsylvania districts listed by Parents Defending Education as employing secrecy policies to comment on these policies. Two responded. A spokeswoman for Lower Merion declined to comment or point to any statute or court case that supports the policy on advice of the district’s counsel. Beth Patruno, president of Colonial School Board, said, “We intend to consult with our solicitor on the issue you’ve raised.”
But school districts aren’t the only ones being spuriously threatened with falling into legal “hot water.” The ultimate threat is to parents.
The ACLU has a handbook for school districts explaining how to support transgender students. It includes a chapter on “unsupportive parents.” In it, schools are never advised to follow parents’ desires for their children, and no mention is made of the American legal system’s respect for parents’ rights, as Justice O’Connor explained in Troxel. The only acceptable outcome is affirmation. Parents’ right to disagree or guide their children, the handbook implies, is effectively forfeited by the fact that the child attends a public school—an institution that the ACLU sees as better equipped than parents to understand children. “School officials interact with the student on a daily basis and focus on supporting the student’s growth and development, which gives school personnel unique insight into the student’s needs without the biases parents can or are perceived to have,” the handbook says. [Italics mine]
The ACLU thus envisions school districts as allies in legal fights against non-compliant parents. “If the parents are unable to resolve the dispute amicably, it is possible that an educator or school administrator may be called to testify in court,” the handbook says. And such legal fights are already causing some parents to lose custody of their children in family courts, which, says the ACLU handbook, are being “educated.”
Along with its school district list, Parents Defending Education has released a poll revealing that 71 percent of voters oppose withholding information about a child’s gender identity from parents, which aligns with other recent polls. The likely vast majority of public school parents who share that opinion must now consider the new reality they face: When you drop your child off at school, radicalized teachers and administrators, backed by transgender ideologues, could be acting behind your back—and outside the bounds of federal law—to foster your child’s new gender identity, whether you like it or not.
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