Staff Editorial: Amendment to FERPA Needed to Better Serve LGBT Youth

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Keely King

The current state of FERPA makes it difficult to respect a students gender identity at school if they are trying to avoid being outed at home. Art by Keely King

Darian Pierre, Online Editor

As a society, we have become increasingly accepting of people’s gender identities and expressions. Despite this, some minors are still at risk of victimization from their families if they come out as anything other than the gender that they were assigned at birth. 

For many students, school can act as a safe space that they can use to be themselves amongst their peers. A 2020 survey of over 40,000 LGBT+ youth by The Trevor Project, a partner organization of the Jason Foundation, found that suicide rates drop by 9% if the student attends a school that affirms their identity. As that safe space, schools need to be bound to protect student privacy when it comes to potentially outing a student.

The ACLU defines the concept of “outing” as “disclosing a student’s sexual orientation or gender identity to parents or other school staff, even if the student is open about their sexual orientation or gender identity with friends at school.”

But while respecting that student’s privacy, teachers and staff should be able to address students in the way that best validates their identity. And while it would seem easy to simply call students by the names and pronouns that they prefer, the Family Educational Rights and Privacy Act (FERPA) interferes with that in its current state. FERPA protects the parents’ right to access and know all stored information about their child and to prevent that information from being released to 3rd parties. What isn’t as clear is whether schools are violating FERPA by using a student’s preferred name and pronoun at school when the student’s parents are not aware.  

There are some cases across the country where schools are being sued by parents over county or state department of education guidelines that encourage staff to protect students who wish to keep their gender identity a secret. The parents claim that the guidelines are in violation of FERPA. An example would be in Maryland, where Montgomery County Public Schools are being sued by two local families after implementing a set of guidelines in 2019, which state that “The fact that students choose to disclose their status to staff members or other students does not authorize school staff members to disclose students’ status to others, including parents/guardians and other school staff members, unless legally required to do so or unless students have authorized such disclosure.” The guidelines also state that “Students should be addressed by school staff members by the name and pronoun corresponding to the gender identity that is consistently asserted at school” and that “asking about a person’s pronouns makes spaces more inclusive and welcoming of transgender, gender nonconforming, and non-binary people.” School personnel are directed to discuss with the student how comfortable they are with their guardians knowing their identity and taking appropriate steps to minimize harm while also encouraging staff to address students by preferred name and pronouns.

Similar guidance was issued on the state level in New Jersey, where in 2017 guidelines were set forth by the state department of education on how to treat transgender students. These guidelines state that “a school district shall accept a student’s asserted gender identity; parental consent is not required.” The guidelines also say that “School district personnel should have an open, but confidential discussion with the student to ascertain the student’s preference on matters such as chosen name, chosen pronoun to use, and parental communications.”

The New Jersey guidelines do not actually prevent schools from notifying parents but say they are not obligated to do so. The opposition still believes that parents have the right to be immediately notified. The debate at this point is one on morals rather than one on legality.

This is why it is about time that we consider a radical amendment to FERPA to make room for laws that expand the confidentiality rights of minors to prioritize their safety and privacy over their parents’ rights to know, especially when student mental health and safety are at greatest risk. These laws would need to be direct and leave nothing up for interpretation as FERPA currently does. The goal should be to allow students to be as open as they want to be at school without that information reaching home until they are ready. Schools should be directed to counsel students to aid them in achieving the best outcomes. It would be an exercise in risk assessment. After counseling, the best outcome is that some students may be ready to come out at home.

Transgender and nonbinary youth who reported having pronouns respected by all or most people in their lives attempted suicide at half the rate of those who did not have their pronouns respected.”

— The Trevor Project

The Trevor Project survey also found that suicide rates drop by 11% if they have a family that strongly affirms their identity. Those are the benefits to being out to parents that do accept them. The survey also found that “Transgender and nonbinary youth who reported having pronouns respected by all or most people in their lives attempted suicide at half the rate of those who did not have their pronouns respected.” Unfortunately, not all minors have that luxury. In those instances, the student’s right to life and school affirmation should take precedence over their parents’ right to know. 

FERPA was passed in 1974, so the law wasn’t written with our current views on gender in mind. There is legitimacy to interpretations of the law that make any changes in a student’s identity the right for their parents to know. 

But when we analyze the situation consequentially, we have to ask if there is harm created by giving parents complete control. And there are risks to outing a student to their families without their consent. Discrimination against trans and gender non-conforming people is widespread, so if the student’s family has these prejudices, it puts the student at risk of victimization when outed. 

What we are advocating for is not impossible or otherworldly. Colleges already handle this very well. Many universities make it as simple as the student filling out a Google form with their preferred name and pronouns, and the system makes a note of it across the board. All University of Nebraska schools and Creighton University have digital systems in place that students can use to change their preferred name to differ from their legal name as well as their gender identity. It is as simple as the student accessing their university account information and making the desired changes. The changes appear on their ID cards, professors rosters, official university email, and any place where “legal name is not required.” This system is much better than what students have access to in secondary school. Unfortunately, colleges are not completely exempt from the problems with FERPA. If a college student is still filed on their parents’ taxes as a dependent, then the university can, but is not obligated to, disclose their personal information to the parents. That makes the chance of them being outed lower than that of a high school student but is still based on luck and interpretation. That being said, for an independent student, FERPA does protect their private records in its current state. The difference between a high school student and a college student is only one of up to a few years. And the difference between a dependent and independent college student is arbitrary. It begs the question of why the systems that young people are subject to are so different. 

Even though it may seem like a violation of parental rights to keep information about their kids from them, there comes a point where a school may need to do so if there is going to be harm caused otherwise. What we should push for to solve this is direct and universal federal policy that goes beyond guidance from state departments of education and expands upon the right to privacy for minors. This would allow them to keep certain parts of their school life under wraps until they’re ready, whilst still allowing teachers/schools to begin to use the student’s preferred name and pronouns.