Civil Rights Group Pushes States to Scrap Gender ‘Non-Disclosure’ Policies at Schools

Civil Rights Group Pushes States to Scrap Gender ‘Non-Disclosure’ Policies at Schools
Students walk to their classrooms at a public middle school in Los Angeles on Sept. 10, 2021. (Robyn Beck/AFP via Getty Images)
Brad Jones

A national civil rights group has urged the California government to revise policies that require teachers and other school staff to hide the gender identities of students as young as kindergarten from their parents if the child so wishes.

The nonprofit Foundation Against Intolerance & Racism (FAIR) has also advised Oregon, Vermont, and New Hampshire, which have similar policies, to do so as well, “however, none of those states’ non-disclosure laws go quite as far as California,” Letitia Kim, managing director of the organization's legal network, told The Epoch Times on Aug. 24.

California Department of Education (CDE) policies encourage schools to “socially transition” children who say they are transgender, which means allowing them to use preferred names and pronouns, dress as the opposite gender, and use opposite-sex bathrooms without parental consent.

“You can’t just leave it entirely within a child’s hands, particularly given that the child is not developmentally mature enough to make that kind of a determination,” she said.
Kim stated in an Aug. 10 letter (PDF) to State Superintendent of Public Instruction Tony Thurmond that several CDE “non-disclosure” policies related to gender identity pronouns are unconstitutional because they violate parental rights.

The CDE policy cited in the letter prohibits schools from disclosing a student’s transgender identity to their parents, unless the child consents or the school believes there is any “compelling” reason to tell the student’s parents.

“With rare exceptions, schools are required to respect the limitations that a student places on the disclosure of their transgender status, including not sharing that information with the student’s parents. In those very rare circumstances where a school believes there is a specific and compelling ‘need to know,’ the school should inform the student that the school intends to disclose the student’s transgender status, giving the student the opportunity to make that disclosure her or himself,” the CDE policy states.

The CDE also instructs schools to store transgender students’ chosen name and gender in separately located “unofficial” records, Kim points out in the letter.

“To prevent accidental disclosure of a student’s transgender status, it is strongly recommended that schools keep records that reflect a transgender student’s birth name and assigned sex (e.g., copy of the birth certificate) apart from the student’s school records. Schools should consider placing physical documents in a locked file cabinet in the principal’s or nurse’s office,” the policy states.

The CDE also requires “all members of the public school community, including students,” to use the preferred pronouns of others on penalty of harassment charges.

Although the CDE may intend to protect transgender students and create environments of respect, “its expansive policies go too far,” Kim states in the letter.

State non-disclosure policy, based on Assembly Bill 1266 (AB 1226), allows students to participate in school sports and activities consistent with their gender identity, but nothing in the statute permits public schools to withhold information about a child’s gender identity from parents, Kim points out in the letter.

The CDE is depriving parents of their fundamental rights under the due process clause of the 14th Amendment to direct the upbringing, care, and control of their children, FAIR contends. And because gender transition affects a child’s mental, emotional, and physical development, parents not only have a right to know but must consent to this kind of gender transitioning, including social transitioning, she said.

Thurmond was given five days to respond to the letter, which was also sent to Virginia Jo Dunlap, the CDE’s chief legal counsel, but didn't do so, Kim said.

“We remain optimistic they will see that these policies do not comport with constitutional requirements, and hopefully revise them,” she said.

Parents, she said, should be treated as partners in the education process and “not be summarily excluded, particularly when it involves an issue so important and so essential to a person's life as their gender and gender identity.”

FAIR plans to send a follow-up letter to Thurmond, and if still nothing is done to revise current policies that keep parents in the dark, Kim said the organization will consider litigation.

“It is an uphill battle in many ways in California,” she said. “We are not ruling out the possibility of legal action.”

“We prefer to resolve these things without legal action in all cases, if we can. Sometimes, we can’t, and in that case, if somebody were to approach us who has legal standing—either a parent or guardian in the school who has a child who was affected by this policy—then we would absolutely consider supporting further legal efforts, including litigation,” Kim said. “Our door always remains open to parents who find themselves in these situations where information that they’re entitled to has been concealed from them.”

FAIR states it is a nonpartisan, nonprofit group with more than 80 chapters and “tens of thousands of members nationwide, including throughout California.”

Maria Clayton, CDE communications director, stated in an email to The Epoch Times that the CDE is reviewing the letter which, she said, didn’t reference any specific guidance.

“While it is unclear what is being challenged, pursuant to Education Code Section 200 and AB 1266, we believe that the CDE has acted appropriately. The guidance reinforces the right of students, especially transgender students, to be treated with respect and in compliance with the law,” Clayton said.