Article originally publsihed November 20, 2024 on northjersey.com

Link to Original Article by Mary Ann Koruth

Lawyers for four school districts argued before a state appeals court panel Tuesday that new district policies requiring school officials to inform parents of transgender students who out themselves in school do not violate the state’s Law Against Discrimination, as Attorney General Matthew Platkin’s office says they do.

A panel of three judges listened to arguments from attorneys defending the four school districts and attorneys representing the state and the American Civil Liberties Union.

The state Attorney General’s Office sued Hanover Township in Morris County and three Monmouth County school districts last year for enacting policies Platkin said could “out” transgender students and violate New Jersey’s long-standing Law Against Discrimination.

The districts are awaiting a ruling from the court on whether orders blocking them from implementing changes to Policy 5756, the state’s “Transgender student guidance” for districts, should be lifted while a separate administrative complaint brought against them by the Murphy administration plays out.

The case could head to the state Supreme Court on an appeal, said Natalie Kraner, a pro bono attorney from the law firm Lowenstein Sandler LLP, who made arguments Tuesday on behalf of the ACLU in defense of the state guidance.

The districts argue that their policies do not violate state law, and instead that the state policy weakens parental rights afforded by the constitution.

State-mandated privacy rights of school-age LGBTQ+ children — especially the right to come out to their parents in their own time — has been a top issue for the so-called parental rights movement that has flooded debate over K-12 education policies since the pandemic.

Hanover Township district repealed its transgender guidance

The Hanover Township school district, a K-8 district in Morris County, repealed its transgender guidance, replacing Policy 5756 with a new policy last year.

The new policy, adopted in May and later revised by the district, required school staff to inform parents if they became aware of any behavior exhibited by children that could have an “adverse impact” on their well-being, including “social-emotional well-being.”

The state sued to block that new policy, on the grounds that it still exposed transgender students who may not be ready to be outed to their families. Schools are a state-mandated safe space for students to express their gender identity.

Superior Court Judge Stuart Minkowitz in Morris County agreed with the state at the time, saying the language in the new policy was vague and allowed both certified and non-certified staff members to report behavior to school administrators, which would then trigger a parental notification process.

He issued a preliminary injunction blocking Hanover from implementing the policy.

The appeals court judges raised the same question at Tuesday’s hearing, asking whether a lunch aide should be given the same responsibility as a teacher.

Judges: What if student was afraid for their safety at home?

The judges also raised a key question: what a school district that challenges the transgender guidance would do if a student told them they were afraid for their safety in their home, and requested that their families not be notified of their gender expression when in school.

The district would then begin a process to determine whether the child’s concern is “bona fide,” responded attorneys for the Monmouth County school districts. The judges asked what the criteria are for determining whether a complaint is bona fide.

“Nowhere in New Jersey’s Law Against Discrimination does it say that notifying a parent violates law,” argued Hanover Township board attorney Matt Giacobbe. The 14th Amendment protects a parent’s right to be informed about their children, he said. He said the new policy did not even mention transgender students.

In his rebuttal, Deputy Attorney General Daniel Resler argued that Hanover’s new policy simply “lined out” or removed mention of transgender students. However, an earlier version of the same policy identified this group of students, he said.

Social-emotional well being was “a catchall” phrase for all sorts of issues students face, which could include sexual orientation and gender identity, Resler said. He alleged that the school district had issued a press release saying parents should be notified about transgender students. This indicated that the new policy “went out of the way to target trans students,” he told the judges, even if it did not mention them in its revised version.

The state’s position is one of “non-interference” in parental authority, argued Mayur Saxena, Assistant Attorney General, because it does not stop schools from informing parents about their children’s gender expression while in school, or compel them to do so. Trans student policies are a “complex” legal space, he acknowledged.

The decision is left to the discretion of school administrators. State law has barred discrimination based on “gender identity or expression” in public spaces — which include public schools — since 2006. That includes “disparate treatment and disparate impact alike,” the state said in briefs filed with the appellate court.

It’s important that these policies take a “student-centered approach”, said Kraner, of Lowenstein Sandler LLP, who argued on behalf of the ACLU. “This is a significant issue regarding the interpretation of the state’s Law Against Discrimination,” she told NorthJersey.com.

Three Monmouth County districts changed their policies

The Manalapan-Englishtown Regional, Marlboro Township and Middletown school districts all changed Policy 5756 in ways that could result in disparate treatment of transgender kids, the state argued in the appeals court. Some of the changes, including requiring schools to notify parents if a child requests a public accommodation, such as using a bathroom assigned to a different gender, are discriminatory, the state said.

The New Jersey Education Department and state law direct schools to treat gender expression as a confidential matter to be shared with parents only with the student’s agreement or if there is a risk to the student’s health and safety.

National right-wing groups and parental rights groups have joined the legal fray that has risen from these policies. A Pittsburgh-based group called the Center for American Liberty has taken up parental notifications cases affecting trans kids in other states, including the Los Angeles Unified School District, and its lawyers were in court with attorneys for the three Monmouth County school districts.

State law does not protect children’s privacy “except where parents are adjudged unfit,” Giacobbe, the Hanover Township board attorney, said in his brief to the appeals court.

The state says the law already makes an exception for unfit parents. The court’s order stopping Hanover Township from implementing its revised transgender policy does not prevent parents and children from talking to each other. It “does not intrude on parental decision-making, as it neither stops parents from counseling their children or their children from sharing information with their parents,” the attorney general’s brief said.

It noted that LGBTQ+ students “already face a distressingly high risk of mental health challenges and violence.”

“The bottom line is, if you want to ensure your child tells you something, make sure they know they’re loved and honored unconditionally,” Aedy Miller of Garden State Equality, an LGBTQ+ advocacy group, said in a statement. “To paint the protection of trans students in unsafe home conditions as being in opposition to the concept of parents’ rights is disingenuous.”