Court mulls school parental notification policies on transgender students

The Essex County Historic Courthouse in Newark (Photo by New Jersey Monitor)

Attorneys for the state of New Jersey and four school districts squared off in court in Newark Tuesday over district policies that require parental notification when students change their sexuality or gender identity.

The school districts asked a three-judge appellate panel to lift temporary court orders that prohibit Middletown, Marlboro, Manalapan, and Hanover school districts from implementing the policies.

Two Superior Court judges had suspended the policies — in May 2023 for Hanover and August 2023 for the other three districts — until a civil rights challenge state Attorney General Matt Platkin filed last year is decided. Platkin says the policies violate protections for LGBTQ people under the state's Law Against Discrimination.

Attorney Bruce Padula, who represents Manalapan and Middletown, told Judges Robert J. Gilson, Avis Bishop-Thompson, and Lorraine Augostini that it has been 517 days since Platkin first filed his civil rights complaint.

"For all intents and purposes, by stalling the (civil rights) matter, this preliminary injunction has turned into a permanent injunction," Padula said.

The judges did not issue a decision Tuesday but heard almost three hours of argument, in which both sides insisted protecting students was their primary concern.

In urging the judges to continue prohibiting the policies' implementation, Assistant Attorney General Mayur Saxena said such policies involuntarily out transgender students who aren't ready or comfortable with sharing their gender identity with their families.

"Parents absolutely play an essential role in guiding their children's development, and the state reaffirms that fact today. But no court has ever held that a parent's constitutional rights are so broad as to affirmatively require school districts to discriminate against transgender students through blanket involuntary notification," Saxena said.

But Padula and attorneys for the other districts insisted their policies protect against forced outing, such as a parent hearing about their child's gender transition through gossip.

They also protect students, because notifying parents ensures parents will get kids help when they struggle, added attorney Matthew Giacobbe, who represents Hanover.

"We're never going to put a kid in harm's way," Giacobbe said. "We have to work as a team. And that's really what this is — it's not silos. We don't operate in silos, where school is a silo, home is a silo. No, it's a farm. And it all has to work together."

The school districts' attorneys argued that children are immature and make rash decisions, and transitioning to another gender can have a lifelong impact, with social transitioning "the first step" toward medical treatment.

One told the appellate panel that the policies have "nothing to do with the student's gender identity" and that any change would trigger parental notification, such as a student developing eyesight or hearing problems that keep them from seeing the blackboard or hearing the teacher.

"Frankly, it doesn't matter what is the cause that triggers the notification, if there's a concern that the kid is somehow suffering from some social, emotional, or physical harm," Giacobbe agreed.

Saxena disputed that claim, though, saying a student's gender identity triggers the policies in question — and gender identity is specifically protected under the Law Against Discrimination.

"The policies don't apply to students incidentally because they're transgender. They apply precisely because the students are expressing their gender identity, and that's what makes them discriminatory," Saxena said.

The judges pushed back on some of the school districts' arguments too.

Bishop-Thompson asked how notifying parents against a student's wishes is a "student-centered policy," as the districts claim, while Gilson asked if the policies represented the "school board substituting its view for the student's best interest."

Bishop-Thompson also questioned Hanover's policy, which allows lunch aides and other staff besides teachers and counselors to report a student for actions that could result in "adverse impacts."

Giacobbe responded that the policy does not allow aides to report concerns directly to parents, but instead only to a school's higher-ups, like principals, who would then determine whether notification was warranted.

Giacobbe insisted that parental notification policies protect teachers and school districts from angry parents looking for someone to blame when something goes wrong with their children.

"I'm handling a lot of lawsuits from school districts, and you know who they come after? They come after the teachers, the principal, the school district. That's what happens," he said. "So we do have a duty to notify and it's steeped in our law."

Besides, the policies in question align with other parental notification requirements that bar children from doing things like getting tattoos or taking Tylenol, the school districts' attorneys argued.

"You can't take an aspirin, you can't do anything, without parental notification — but you could go so far as to fully socially transition in school without parental notification. We just feel that that's not a best policy or practice, and it's not in the best interest of the student," Padula said.

Attorney Natalie J. Kraner, representing the American Civil Liberties Union of New Jersey, countered that survival is in the best interest of the student. She reminded the judges of the harms LGBTQ students face when they're not ready to come out or have a family that's not supportive.

"There is no group more vulnerable or more susceptible to physical or psychological harm than transgender, gender-nonconforming, and nonbinary, and the statistical possibility that even one transgender student affected by the amended policies should run away from home or attempt to commit suicide is sufficient to tip the balance of equities in favor of the state," Kraner said. "That's what's at stake here."