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Some Schools Won’t Tell Parents When Their Kids Express Gender Confusion. Experts Say That’s Illegal.

Students can assume different pronouns, have access to other bathrooms, and change their name without parental involvement

Students at a Loudoun County, Va., elementary school / Getty Images
• August 11, 2022 5:25 pm

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Public schools nationwide are telling students they can assume different pronouns, have access to another sex's bathroom, and change their name without letting their parents know, a violation of federal law legal experts tell the Washington Free Beacon.

Fairfax County Public Schools in Virginia bar teachers from "outing" transgender students to parents, as do Montgomery County Public Schools in Maryland. These increasingly common policies are meant to guard students against parents who, according to Fairfax County schools, "may not yet be supportive of their child’s transition." But according to Vernadette Broyles, they also violate parents’ right to privacy as codified in the Family Educational Rights and Privacy Act (FERPA) of 1974.

"Privacy rights are held by the parents for the child, not by the child against their parents," Broyles, president and founder of the Child and Parental Rights Campaign, told the Free Beacon. Broyles says Fairfax and Montgomery school officials are "attempting to usurp parental authority," which is protected by the 14th Amendment. She called the schools’ policies "intentional obfuscation, driving a wedge between children and parents at a time when children need their parents most." Three other attorneys involved in similar cases cited the same violations of the Constitution and federal law in support of parents' rights.

The news comes as parents nationwide are filing lawsuits against school districts over the issue. Parents Defending Education, a conservative grassroots group, announced last week it was suing an Iowa school district for refusing to disclose a child’s transgender status without their permission. The district keeps "temporary" files for students’ gender support plans, allowing them to skirt official records requests from parents. Similarly, the Maryland and Virginia school districts instruct their employees to refrain from mentioning a child’s chosen gender identity on school forms or in emails where it could become public.

These policies are designed to conceal when a student begins to identify as a different gender without necessarily changing their physical appearance. To support "social transitions," teachers are instructed to use a student's chosen gender pronouns and treat them like their assumed gender, and in some cases giving students access to bathrooms "that correspond with their gender identity."

Parents Defending Education president Nicole Neily told the Free Beacon the Iowa policy "intentionally evades federal law by placing students' gender information in a temporary file—information that, if it were included in a child's permanent file, would be accessible to parents through FERPA."

The Montgomery County Board of Education is already embroiled in a lawsuit filed in 2019 over the policy. Attorneys for the plaintiffs argued in federal court last year that the policy is unconstitutional and violates FERPA, as well as state law. But the policy's defenders claim that the same federal law protects a student's right to privacy, even if the student is a minor.

LeRoy Rooker, a former director for the Education Department’s Family Policy Compliance Office, told Bethesda Magazine in 2021 that claim is false.

"There’s absolutely nothing in FERPA that would say they would violate FERPA by disclosing that to parents," Rooker said. "The violation would be in not disclosing it if the parents request it."

Some states have laws that ostensibly guard against such policies. A Virginia bill passed in 2013 protects parents’ rights to raise and educate their children. Fourteen other states have passed legislation along the same lines. In April, two Massachusetts parents sued their school district for violating federal and state law by hiding their children's gender identity at school.

Parents say those laws haven't been enough to protect children. Jeff Hoffman, a father of three Fairfax students and chairman of the Fairfax Parents First Coalition, wants the Virginia law to be written into school board policies statewide. Barring that, he called for parents to "put the entire transgender policy" on a ballot referendum for November.

"Fairfax County in Virginia is an example and proof of politically driven transgender policy that is systemically indoctrinated across our American schools," Hoffman said.

The Free Beacon first reported in July that a Fairfax County faculty training module had directed teachers to forgo parental consent when students as young as kindergarten-age adopt a different gender at school.