Sign up for Chalkbeat’s free weekly newsletter to keep up with how education is changing across the U.S.
Schools cannot withhold documents that discuss a child’s gender identity from parents, the U.S. Department of Education said in a Dear Colleague letter to educators.
The Friday letter said many schools and states have misinterpreted federal student privacy laws in ways that prevent parents from knowing when their child is going by a different name or pronouns at school.
Advocates for LGBTQ youth say that most schools try to involve parents but not all parents are safe or supportive.
The letter said many school districts have formal or informal policies of treating “gender plans” — plans that support students who want to socially transition at school — as something other than educational records so that they do not have to share them with parents.
That practice violates the Family Educational Rights and Privacy Act, which lays out students’ privacy rights in school and also gives parents access to students’ educational records, according to the letter from Frank Miller Jr., acting director for the Student Privacy Policy Office in the Education Department. All information that a school maintains about a student, with a few narrow exceptions, should be considered an educational record and shared with parents, Miller Jr. wrote.
The letter also addresses how schools should handle cases in which one student makes a serious threat against another.
The line between parental rights and students rights has been a fraught one in the debate over transgender rights at school. The letter comes as the U.S. Department of Education has opened investigations into California and Maine for alleged FERPA violations related to policies that call for schools to respect students’ chosen names and pronouns. President Donald Trump has also used executive orders to attack transgender rights on numerous fronts.
Dear Colleague letters are not equivalent to federal law or regulations, but do represent a presidential administration’s interpretation of the law.
In a cover letter, Education Secretary Linda McMahon said some schools, by using students’ preferred names and pronouns and generally respecting their new gender identity, have set children and teenagers on a path toward medical transitions that they later regret.
“The practice of encouraging children down a path with irreversible repercussions — and hiding it from parents — must end,” McMahon wrote. “Attempts by school officials to separate children from their parents, convince children to feel unsafe at home, or burden children with the weight of keeping secrets from their loved ones is a direct affront to the family unit. When such conduct violates the law the Department will take swift action.”
Written records related to a student’s gender identity, as well as school counseling records, would be considered educational records, said LeRoy Rooker, who oversaw FERPA administration at the U.S. Department of Education for 21 years and is now a senior fellow at the American Association of Collegiate Registrars and Admissions Officers. That means parents have the right to see those records at the K-12 level until a student turns 18.
That’s not a new interpretation of the law, Rooker said, though the issue is more prominent now than in the past. FERPA doesn’t require schools to notify parents about changes in a student’s gender identity or reveal information that isn’t part of a written record, but schools can’t withhold records that parents request.
California law prohibits school districts from requiring parental notification. Maine’s policies, which are guidelines and not requirements, state that schools should respect students’ gender identity, even if parents don’t agree. The guidelines don’t directly address parental notification or withholding information.
Sarah McDaniel, president of the Portland, Maine, chapter of PFLAG, an advocacy group for parents and allies of LGBTQ people, said it’s not true that schools are encouraging children to become transgender behind their parents’ backs.
Any policy on parental notification has to prioritize students’ safety, she said.
“Parents who are unsupportive can be extremely unsupportive, to the point that they kick their kid out of the house,” said McDaniel, who is the mother of a trans son who came out in high school. “A high schooler who is scared to tell their parents what their pronoun is, they know their parental situation and they should not be forcefully outed.”
The Education Department has also targeted Maine for policies that allow transgender athletes to compete on teams that align with their gender identity and threatened to withhold federal funding.
Melanie Willingham-Jaggers, executive director of GLSEN, a group that supports the legal rights of LGBTQ students, called the letter “the latest intimidation tactic” to suppress support for gay and trans youth in school.
“When Linda McMahon says ‘parents’ rights,’ she’s not talking about every parent,” she said in a statement. “LGBTQ+ students and their parents are wondering why what’s left of the Education Department is so focused on pushing a climate of exclusion instead of advancing a vision where every student is set up for success.”
Schools’ approaches to gender identity vary
Around the country, states and school districts have adopted a range of policies and laws about students’ requests to change their names and gender identity.
Indiana requires schools to notify parents of any student request to use a different name, pronoun or gender. Some school districts there won’t use a different name or pronoun without parental permission.
Colorado state law requires school districts to respect non-legal name changes. But school districts have a range of policies on parental notification. In some conservative communities there, school districts still require parental permission for a child to go by a different gender at school.
New York City policy says situations in which students don’t want parents to know about their gender identity should be handled with care on a case-by-case basis.
Michigan’s non-binding state guidance has a similar provision, noting that privacy considerations vary by age.
A number of parents have sued their school district, alleging that officials withheld critical information about their child. The courts have generally sided with the school districts, and in some cases, the situation has been more complicated than initially presented.
Trump used his joint address to Congress to highlight the case of January Littlejohn, a Florida parent who accused her school district of carrying out a “secret gender transition.”
According to Politifact and other media accounts, court records later revealed that Littlejohn informed her child’s teacher that the child identified as nonbinary and wanted to use they/them pronouns. In an email, Littlejohn said the child could take the lead at school, even though she and her husband would not change what they called the child at home.
The school initially denied Littlejohn access to a support plan that had been developed but eventually shared the document.
A federal judge dismissed Littlejohn’s lawsuit. The family is appealing.
Last year, the U.S. Supreme Court declined to hear a case that involved a Wisconsin school district’s gender support polices because none of the plaintiffs had a child in the school district who had changed their gender identity without a parent’s knowledge. The case involved a theoretical harm, rather than an actual family.
Through executive orders, the Trump administration has attempted to ban transgender service members from the military, refused to issue identity documents with updated gender markers, and threatened hospitals that provide gender-affirming care. All of these orders have been challenged in court, with litigation ongoing.
Editor’s note: This article has been updated with information from LeRoy Rooker, an expert in FERPA.
Erica Meltzer is Chalkbeat’s national editor based in Colorado. Contact Erica at emeltzer@chalkbeat.org.
