Student Records and Privacy
A transgender or gender nonconforming student may not express their gender identity openly in all contexts, including at home. Revealing a student’s gender identity or expression to others may compromise the student’s safety. Thus, preserving a student’s privacy is of the utmost importance. The right of transgender students to keep their transgender status private is grounded in California’s antidiscrimination laws as well as federal and state laws. Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy.
A. Public Records Act requests - The Education Code requires that schools keep student records private. Private information such as transgender status or gender identity falls within this code requirement and should not be released. (Education Code Section 49060.) B. Family Educational and Privacy Rights (FERPA) - FERPA is federal law that protects the privacy of students’ education records. FERPA provides that schools may only disclose information in school records with written permission from a student’s parents or from the student after the student reaches the age of 18. (20 U.S.C. Section 1232g.) This includes any “information that . . . would allow a reasonable person in the school community . . . to identify the student with reasonable certainty.” (34 C.F.R. Section 99.3.)
C. California Constitution - Minors enjoy a right to privacy under Article I, Section I of the California Constitution that is enforceable against private parties and government officials. The right to privacy encompasses the right to non-disclosure (autonomy privacy) as well as in the collection and dissemination of personal information such as medical records and gender identity (informational privacy). Even when information is part of a student’s records and therefore covered by FERPA, the law provides several exceptions that permit appropriate communications under circumstances in which the student or others may be at risk of harm. Transgender or gender nonconforming students are often subject to stressors which can place them at risk of self-harm. FERPA expressly permits the disclosure of information from a student’s records “…to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” (34 C.F.R. Section 99.36(a).) “If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.” (Id. Section 99.36(c).)
Moreover, although FERPA restricts disclosures of information obtained from a student’s records, it was never intended to act as a complete prohibition on all communications. One threshold point that is often overlooked is that FERPA limits only the disclosure of records and information from records about a student. It does not limit disclosure or discussion of personal observations. In other words, if a school employee develops a concern about a student based on the employee’s observations of or personal interactions with the student, the employee may disclose that concern to anyone without violating, or even implicating, FERPA. Of course, in most cases, the initial disclosure should be made to professionals trained to evaluate and handle such concerns, such as school student health or welfare personnel, who can then determine whether further and broader disclosures are appropriate.
What steps should a school or school district take to protect a transgender or gender nonconforming student’s right to privacy? 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. Alternatively, schools could indicate in the student’s records that the necessary identity documents have been reviewed and accepted without retaining the documents themselves. Furthermore, schools should implement similar safeguards to protect against disclosure of information contained in electronic records.
Pursuant to the above protections, schools must consult with a transgender student to determine who can or will be informed of the student’s transgender status, if anyone, including the student’s family. 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. Additionally, schools must take measures to ensure that any disclosure is made in a way that reduces or eliminates the risk of re-disclosure and protects the transgender student from harassment and discrimination. Those measures could include providing counseling to the student and the student’s family to facilitate the family’s acceptance and support of the student’s transgender status. Schools are not permitted to disclose private student information to other students or the parents of those students.
A transgender student’s right to privacy does not restrict a student’s right to openly discuss and express their gender identity or to decide when or with whom to share private information. A student does not waive his or her right to privacy by selectively sharing this information with others.
A school district is required to maintain a mandatory permanent student record which includes the legal name of the student and the student’s gender. If and when a school district receives documentation that such legal name or gender has been changed, the district must update the student’s official record accordingly.
If the school district has not received documentation supporting a legal name or gender change, the school should nonetheless update all unofficial school records (e.g. attendance sheets, school IDs, report cards) to reflect the student’s name and gender marker that is consistent with the student’s gender identity. This is critical in order to avoid unintentionally revealing the student’s transgender status to others in violation of the student’s privacy rights, as discussed above in section 6.
If a student so chooses, district personnel shall be required to address the student by a name and the pronouns consistent with the student’s gender identity, without the necessity of legal documentation or a change to the student’s official district record. The student’s age is not a factor. For example, children as early as age two are expressing a different gender identity. It is strongly suggested that teachers privately ask transgender or gender nonconforming students at the beginning of the school year how they want to be addressed in class, in correspondence to the home, or at conferences with the student’s parents.
In addition to preserving a transgender student’s privacy, referring to a transgender student by the student’s chosen name and pronouns fosters a safe, supportive and inclusive learning environment. To ensure that transgender students have equal access to the programs and activities provided by the school, all members of the school community must use a transgender student’s chosen name and pronouns. Schools should also implement safeguards to reduce the possibility of inadvertent slips or mistakes, particularly among temporary personnel such as substitute teachers.
Gender markers are the designation on school and other records that indicate what a student’s gender is. For most students, the gender marker will be determined by a student’s assigned birth sex. For transgender students, however, the gender marker shall be determined by the student’s asserted gender identity. All schools are to accurately indicate the student’s gender identity on all records. If the student has previously been known by his/her assigned birth sex, the parents may request that the gender marker on the student records be amended to reflect the student’s gender identity. The school will promptly train all teachers, staff, and school administrators to use the pronoun that matches the student’s gender identity and ensure that all school records reflect the student’s gender identity and not the assigned birth sex. If the student is just entering the school, registration may be completed using the gender marker that reflects the gender identity of the student. The assigned birth sex is considered private medical information and is not to be disclosed.
The school principal should meet with the parents to determine which school staff should be informed of the fact that the student’s gender identity is different that the assigned birth sex. For younger children, it may be appropriate to inform the school nurse as well as the classroom teacher to ensure that the student receives the appropriate support for a safe and respectful learning environment. For older children, the parents and school principal may determine that only the school nurse need know or, in some cases, that no school staff beyond the principal or other senior administrator need have information about the child’s assigned birth sex. Since the student’s birth certificate and health records may contain name and gender information that differs from school records, these documents are to be kept apart from the student’s school records. The school may choose to keep these documents locked in the office of the principal or nurse. Alternatively, the school may simply note that these records have been received and accepted without retaining the documents themselves.
At this time, schools are required to use a student’s legal name and assigned sex at birth on standardized tests and official reports. School staff should be mindful that a transgender student’s gender identity and preferred name may not conform with the official records and protect the student’s privacy by avoiding inadvertent disclosure of the student’s legal name and assigned sex at birth, whenever possible.
Information about transgender student’s legal identity, transgender gender identity, and assigned sex at birth should be treated as confidential information. Disclosing such information to other students, their parents, or other third parties may violate privacy laws, such as FERPA. Do not disclose information that may reveal a transgender student’s status to others, unless legally required to do so, or unless the student has authorized such disclosure. To the extent that the record or directory information provided about the student is not a legal record or the school is not legally required to use a student’s legal name or sex, the school should use the name, pronouns, and gender marker requested by the student.
A student has a right to keep his or her status as a transgendered student private at school. The district should keep this information confidential and staff should not disclose this unless legally required to. Even if the student has disclosed his or her status to other staff or students, it is not the school’s information to share. Medical information of the student should also be kept confidential.
A legal name change is not required for a student to use the preferred name for class lists, student activities, yearbook publications, etc. However, a student’s legal name must be indicated in the student’s official records. The district may list the student’s preferred name in the official records by listing it next to the student’s legal name with asterisks next to it until a legal name change is made.
A student’s official record shall bear their legal name, which may be changed only upon proof that the student’s legal name has been changed pursuant to a court order. At the written request of a student, however, and consistent with the student’s gender identity, the educational institution shall use the student’s preferred name and pronouns consistent with their gender identity on all other documents.
Modify forms that allow families and students the ability to self-identify their gender and preferred names and pronouns. Multiple federal and state agencies have adopted a two-part question that asks separately about current gender identity and sex assigned at birth.
Provide a means to protect the student’s previous identity once a legal name change has occurred and current records are amended to show the change. o Store historical records where they are safe from inadvertent disclosure. o Implement practices that safeguard confidential information from inadvertent disclosure when school staff or administrators are required by law to use or to report a student’s legal name or gender as it appears in the official record.
Upon request, amend and re-issue a diploma in a former student’s name once the former student secures a legal name change, being sure that the fact that the student’s name was changed is not indicated in any way on the diploma.
Note that while a balance between students’ rights to privacy and parents’ rights to information in the educational environment is vital, no provision of state or federal law requires schools to affirmatively disclose this sensitive information to parents. Courts have recognized a constitutional right to medical confidentiality concerning one’s status as a transsexual person, (See Powell v. Schriver, 175 F.3d 107, 111 (2nd Cir. 1999). Federal courts have concluded that schools should not disclose sensitive student information such as sexual orientation to parents without a legitimate stated interest to do so. See Nguon v. Wolf, 517 F. Supp. 2d 1177, (C.D. Cal. 2007) (finding a legitimate purpose for disclosure but stating school could not have ―gratuitously disclosed student’s sexual orientation to parents); Wyatt v. Kilgore Indep. Sch. Dist., 200 WL 601 6467 (E.D. Tex. Nov. 30, 2011), rev’d in part on other grounds, 718 F.3d 496 (5th Cir. 2013), (finding right to privacy regarding student’s sexual orientation and denying summary judgment to school district).
Treat all student information, medical, or other sensitive personal information, including information relating to transgender students, as confidential in accordance with applicable state, local and federal privacy laws.
Implement training and practices that assist school staff and prevent accidental disclosure of information that may reveal a student’s transgender status to others, including parents and other school staff unless the student and/or the student’s parent has authorized school staff to make such disclosure or staff is legally required to do so. Consider that while information in official student records must be disclosed upon the request of parents, sensitive information related to gender identity generally need not be disclosed without the student’s consent.
Under state law, information about a student’s assigned birth sex, name change for gender identity purposes, gender transition, medical or mental health treatment related to gender identity, or any other information of a similar nature, regardless of its form, is part of the individual’s student record (see Massachusetts Student Records Regulations, 603 CMR 23.00), is confidential, and must be kept private and secure, except in limited circumstances. 603 CMR § 23.04.8 One circumstance is when authorized school personnel require the information to provide administrative, teaching, counseling, or other services to the student in the performance of their official duties. For transgender students, authorized school personnel could include individuals such as the principal, school nurse, classroom teacher(s), or guidance or adjustment counselor.
When a student new to a school is using a chosen name, the birth name is considered private information and may be disclosed only with authorization as provided under the Massachusetts Student Records Regulations. If the student has previously been known at school or in school records by his or her birth name, the principal should direct school personnel to use the student’s chosen name. Every effort should be made to update student records (for example, Individualized Education Programs) with the student’s chosen name and not circulate records with the student’s assigned birth name. Records with the student’s assigned birth name should
For certain transactions, such as banking and applying for governmental benefits or licenses, it may be necessary to have a formal legal document establishing one’s change of name for identity and other purposes. The federal Family Educational Rights and Privacy Act, 20 USC 1232g, also protects the privacy of education records and requires that personally identifiable information be kept secure and confidential. be kept in a separate, confidential file. One school nurse dealt with information in the student’s file by starting a new file with the student’s chosen name, entered previous medical information (for example, immunizations) under the student’s chosen name, and created a separate, confidential folder that contained the student’s past information and birth name.
When determining which, if any, staff or students should be informed that a student’s gender identity is different from the assigned birth sex, decisions should be made in consultation with the student, or in the case of a young student, the student’s parent or guardian. The key question is whether and how sharing the information will benefit the student. In one case, parents of a transgender male-to-female elementary school student requested that only the school principal and the school nurse be aware that the student was assigned the sex of male at birth. After a discussion with the school principal, the parents agreed that the student’s teacher, the school secretary, and the district superintendent would also be informed. In this situation, the school principal kept the student’s birth certificate in a separate, locked file that only the principal could access, and put a note in the student’s other file saying that the principal had viewed the student’s birth certificate. In another situation, where a biological male came to school after April vacation as a girl, the school principal and guidance counselor, in collaboration with the student and her parents, developed a plan for communicating information regarding the student’s transition to staff, parents, and students. The plan included who was going to say what to whom, and when the communication would take place.
Transgender and gender nonconforming students may decide to discuss and express their gender identity openly and may decide when, with whom, and how much to share private information. A student who is 14 years of age or older, or who has entered the ninth grade, may consent to disclosure of information from his or her student record. If a student is under 14 and is not yet in the ninth grade, the student’s parent (alone) has the authority to decide on disclosures and other student record matters.
A gender marker is the designation on school and other records that indicates a student’s gender. For most students, records that include an indication of a student’s gender will reflect a student’s assigned birth sex. For transgender students, however, a documented gender marker (for example, “male” or “female” on a permanent record) should reflect the student’s 9 See 603 CMR §§23.01 and 23.07. If a student is from 14 through 17 years of age or has entered ninth grade, both the parent and the student may make decisions concerning the student record, or either the student or the parent acting alone may decide.
gender identity, not the student’s assigned sex. This means that if a transgender student whose gender identity is male has a school record that reflects an assigned birth sex as female, then upon request by the student or, in the case of young students not yet able to advocate for themselves, by the parent or guardian, the school should change the gender marker on the record to male.10 Schools are advised to collect or maintain information about students’ gender only when necessary. One school reviewed the documentation requests it sent out to families and noticed that field trip permission forms included a line to fill in indicating the student’s gender. Upon consideration, the school determined that the requested information was irrelevant to the field trip activities and deleted the line with the gender marker request.
In addition, transgender students who transition after having completed high school, may ask their previous schools to amend school records or a diploma or transcript that include the student’s birth name and gender. When requested, and when satisfied with the gender identity information provided, schools should amend the student’s record, including reissuing a high school diploma or transcript, to reflect the student’s current name and gender.
When requested, schools should engage in reasonable and good faith efforts to change current unofficial student records (e.g., class and team rosters, yearbooks, school newspapers, and newsletters) with the chosen name and appropriate gender markers to promote consistency among teachers, substitute teachers, school administrators, and other staff.14 The Michigan School Code requires proof of identity and age for school entry (e.g., birth certificate, passport) but does not address changing names and gender markers in student records. Per communications with the U.S. Department of Education, the gender marker in the pupil’s official record should reflect the gender identity of the student regardless of what appears on the birth certificate.15 While Michigan law provides a process for people to seek a legal name change, there may be extenuating circumstances that make a legal name change desired but unattainable. Parents, or students who are age 18 or older, have the right to seek amendment to the school records (per FERPA) if their records are deemed “inaccurate, misleading, or in violation of the student’s privacy.”
School districts should comply if transgender students ask the district to amend their secondary educational records, including diplomas and Safe and Supportive Learning Environments for LGBTQ Students September 14, 2016 Page 4 / 9 transcripts after graduation, to ensure that those requesting records (e.g., college admissions offices or potential employers) will only see the name and gender marker corresponding to the student’s gender identity.
Privacy and Confidentiality Regarding Disclosures. A student’s transgender status, birth name, and sex assigned at birth are confidential information and considered personally identifiable information (PII) under FERPA.16 Schools should engage in reasonable and good faith efforts to protect students’ and their family’s privacy by not disclosing, or requiring students or their parent/guardian to disclose, PII to the school and/or school community. Such disclosures may be harmful, infringe upon the privacy of students and their families, and may possibly violate FERPA or constitutional privacy protections.
When students have not come out17 to their parent(s), a disclosure to parent(s) should be carefully considered on a case-by-case basis. School districts should consider the health, safety, and well-being of the student, as well as the responsibility to keep parents informed. Privacy considerations may vary with the age of the students.
Teachers can support inclusion of all students, including transgender and gender-nonconforming students, by embracing simple classroom practices that allow for all students to participate in accordance with their gender identity. Classroom practices that recognize and affirm all students, including transgender and gendernonconforming students, are varied and can include how the teacher addresses the classroom and how the teacher separates students into groups. Family Educational Rights and Privacy Act (FERPA) protects the privacy of students. Schools should note that neither a student’s gender nor pronouns are considered public or directory information. Casual use of a student’s incorrect pronoun or incorrect name may violate FERPA. FERPA also permits families to elect not to disclose directory information about their student.
1. Because schools have multiple student record systems, schools should inventory all of their student record systems to ensure that they have implemented a systemic process that ensures that the names of students are consistently used as they wish to be identified. Schools should consider adding a customized data field for pronouns in their student record system. Schools should ensure that information for the student is properly recorded within the Minnesota Automated Reporting Student System (MARSS). If you have questions or need assistance with this, contact Minnesota Department of Education staff, (marss@state.mn.us).
2. A school administrator or designee should meet with the student and family to discuss how the student’s name and gender will be communicated to peers and the school community. School principals should consider periodically reminding all staff personnel to consistently use the requested name and pronouns of students. 3. Teachers could address students as “students” and “scholars” to be inclusive as opposed to “boys and girls.”
Schools should work closely with the student and family in devising an appropriate plan regarding the confidentiality of the student’s transgender status. In some cases, transgender students may feel more supported and safe if other students are aware that they are transgender. In these cases, school staff should work closely with the student, families, and other staff members on a plan to inform and educate the student’s peers. It may also be appropriate to engage with community resources to assist with educational efforts. However, in other cases, transgender students do not want their parents to know about their transgender status. These situations must be addressed on a case-by-case basis and will require schools to balance the goal of supporting the student with the requirement that parents be kept informed about their children. The paramount consideration in those situations is the health and safety of the student and making sure that the student’s gender identity is affirmed in a manner in which the level of privacy and confidentiality is maintained necessary to protect the student’s safety.
New York State Education Law § 2-d prohibits the unauthorized release of a student’s personally identifiable information, including but not limited to the student’s name, indirect identifiers, and other information that alone or in combination is linked or linkable to a specific student that would allow a reasonable person in the school community to identify the student.32 The federal Family Educational Rights and Privacy Act (FERPA)33 also protects the privacy of student educational records and places restrictions on the release of students’ personally identifiable information. For specific inquiries regarding what constitutes the unauthorized release of a student’s personally identifiable information, school districts should consult their attorneys. For more information on student privacy, in general, see NYSED’s Parents’ Bill of Rights for Data Privacy and Security at http://www.p12.nysed.gov/docs/parents-bill-of-rights.pdf.
Within the school and school district, when a transgender or GNC student new to a school is using a chosen name, the birth name should be kept confidential by school and district staff. School districts are reminded that, while disclosure of personally identifiable information from a student’s education record to other school officials, including teachers, within the district whom the district has determined to have legitimate educational interests may be permissible under FERPA, the district must, among other things, use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests.
Generally, records with the student’s birth name should be kept in a separate, confidential file. If the student has previously been known at school or in school records by his/her/their birth name, the principal should direct school personnel to use the student’s chosen name and not the student’s birth name. To ensure consistency among teachers, school administrators, substitute teachers and other staff, every effort should be made to immediately update student education records (for example, attendance records, transcripts, Individualized Education Programs, etc.) with the student’s chosen name and appropriate gender markers and not circulate records with the student’s birth name. A school’s failure or refusal to amend such records could, for example,
32 N.Y. EDUC. LAW § 2-d. 33 20 U.S.C. 1232g; 34 C.F.R. Part 99. 34 34 C.F.R. § 99.31(a)(1). 8 lead to delays in the student’s receipt of appropriate services or create problems related to the award of appropriate high school course credit, thereby imperiling a student’s ability to graduate with his or her class. With respect to student medical records, school nurses and other licensed professionals need accurate and reliable information to confirm a student’s identity in order to ensure that the student receives appropriate care and to enable them to coordinate care with other health care providers or
licensed professionals, as well as to file health insurance claims with other organizations, such as Medicaid. Nurses are legally required to maintain patient records that accurately document clinical information relating to their patients and must keep their patients’ health records confidential.35 In the case of a transgender student, a school nurse should use the student’s chosen name, and should use the student’s birth name only when necessary to ensure that the student receives appropriate care and to enable the school nurse to coordinate care for the student with other health care providers or licensed professionals, as well as to file health insurance claims. For more information on the maintenance and confidentiality of student medical records, please contact the New York State Education Department Office of Student Support Services or the New York State Statewide School Health Services Center.
However, in other cases, transgender students may not want their parents to know about their transgender identity. These situations should be addressed on a case-by-case basis and school districts should balance the goal of supporting the student with the requirement that parents be kept informed about their children. The paramount consideration in such situations should be the health and safety of the student, while also making sure that the student’s gender identity is affirmed in a manner that maintains privacy and confidentiality.
Students may openly discuss and express their gender identity and expression, and decide when, with whom, and how much information to share. District and school personnel may also encounter situations in which transgender students have not disclosed being a transgender student. School personnel should be mindful of the confidentiality and privacy rights of students when communicating with others and mindful not to reveal, imply, or refer to a student’s gender identity or expression. To ensure confidentiality when discussing a particular concern such as academic progress, access to learning, conduct, discipline, grades, attendance, or health, the focus of school personnel should be specifically on the concern at issue and not on the student’s gender identity or expression.
There are no state laws which either require or prescribe requirements for school district issued student IDs. However, if your school district has chosen to issue student IDs, it is recommended that student IDs be issued in the name reflecting the student’s gender identity consistently asserted at school. This may require issuing the student a new ID card.
School personnel should not disclose information that may reveal a student’s transgender identity except as allowed under the Family Education Rights Privacy Act (FERPA). Under FERPA, generally only those school employees “determined to have legitimate educational interests” may have access to a student’s records or the information contained within those records.16 However, FERPA also contains other general exceptions for release of student records. 17 For example, 15 ORS 174.100. 16 34 C.F.R. § 99.31(a)(1). 17 See the following web site for a discussion of the requirements of FERPA: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
6 student records may be released with the written permission of a student’s parent. These rights transfer to the student when the student reaches the age of 18 or attends a school beyond the high school level. Disclosing confidential student information to other employees, students, parents, or other third parties may violate privacy laws, including but not limited to FERPA. Disclosing confidential student medical information, for example transition status or hormone therapy, to other employees, students, parents or other third parties may constitute a violation of the Health Insurance Portability and Accountability Act (HIPAA) or Oregon law.18
Transgender students have the ability, as do all students, to discuss and express their gender identity and expression openly and decide when, with whom, and how much of their private information to share with others. Schools should work closely with the student and parents in customizing an appropriate plan regarding the confidentiality of the student’s transgender identity that supports the student. That plan may include the option to inform and educate the student’s peers or to not share the information with the student’s peers.
When a transgender student new to a school is using a preferred name, the birth name should be kept confidential by school district staff. School districts should review their Student Information Systems and ensure that all printed and digital materials generated for classroom and instructor use show the student’s chosen name, not their legal name. Examples include attendance sheets, grade books, etc. School districts are reminded to use reasonable methods for ensuring that only those with a legitimate educational interest have access to student records.
Students are often still in transition at the time of graduation and have not necessarily completed legal name changes and other documentation. Recommended best practice for graduating transgender students is to provide two diplomas and two sets of transcripts, one with the legal first name and one with the preferred first name. Once a student has completed a legal name change, they can request all records be updated in their student education record to reflect their legally changed name. This may happen before or after graduation.
Although there are no state requirements relating to whether transcripts contain information about a student’s gender, it is recommended that student transcripts be gender neutral and contain no indicator of gender for any student.
School nurses and other licensed health professionals need accurate and reliable information to ensure that the student receives appropriate care to enable them to coordinate care with other health care providers. A school nurse should use the transgender student’s preferred name and identified gender except when necessary to ensure the health and safety of the student.
All people, including students, have a right to privacy, and this includes the right to keep one’s transgender status private at school. Information about a student’s transgender status, legal name, or gender assigned at birth also may constitute confidential medical information. Disclosing this information to other students, their parents, or other third parties may violate privacy laws, such as FERPA. Therefore, school staff must not disclose information that may reveal a student’s transgender status to others, including parents and other school staff, unless legally required to do so or unless the student has authorized such disclosure (GLSEN, 2015).
Transgender and gender non-conforming students have the right to discuss and express their gender identity and expression openly and to decide when, with whom, and how much to share private information. The fact that a student chooses to disclose his or her transgender status to June, 2016 Page 7 staff or other students does not authorize school staff to disclose medical and/or other information about the student. When contacting the parent(s) or guardian(s) of a transgender student, school staff should use the student’s legal name and the pronoun corresponding to the student’s gender assigned at birth unless the student or parent(s)/guardian(s) have specified otherwise.
The school is required to change a student’s official record to reflect a change in legal name or gender when there is documentation that such a change has been made pursuant to a court order or through amendment of state or federally issued identification documents. However, to the extent that the school is not legally required to use a student’s legal name and gender on other school records or documents, the school should use the name and gender requested by the student. In situations where school staff or administrators are required by law to use or to report a transgender student’s legal name or gender (for example, standardized testing), school staff and administrators must adopt practices to avoid the inadvertent disclosure of such confidential information.
When determining which, if any, staff or students shall be informed that a student’s gender identity is different from the assigned sex at birth; decisions should be made in consultation with the student, or in the case of a young student, the student’s parent(s) or guardian(s). The main focus should be on how the sharing of information will benefit the student.
Certified school nurse teachers and other licensed professionals need accurate and reliable information to confirm a student’s identity in order to ensure that the student receives appropriate care and to enable them to coordinate care with other health care providers or licensed professionals, as well as to file health insurance claims. Nurses are legally required, per the RI Rules and Regulations for School Health Programs, to maintain an individual school health record for every student that accurately documents clinical information relating to their patients and must keep their patients’ health records confidential. In the case of a transgender student, a school nurse should use the student’s preferred name, and should use the student’s birth name only when necessary to ensure that the student receives appropriate care and to enable the school nurse to coordinate care for the student with other health care providers or licensed professionals, as well as to file health insurance claims.
Except as set forth herein, school personnel should not disclose information that may reveal a student’s transgender or gender nonconforming status. Under the Family Educational Rights and Privacy Act (FERPA), only those school employees with a legitimate educational need should have access to a student’s records or the information contained within those records. Disclosing confidential student information to other employees, students, parents, or other third parties may violate privacy laws, including but not limited to FERPA. Transgender or gender nonconforming students have the ability, as do all students, to discuss and express their gender identity and gender expression openly and decide when, with whom, and how much of their private information to share with others.
Schools should work closely with the student and family, if appropriate, in devising an appropriate plan regarding the confidentiality of the student’s transgender or gender nonconforming status that works for both the student and the school. The support of the student’s family may vary. In adopting a student-centered approach, a school can best support a transgender student by involving the student regarding how and what information about the student is shared within the school and between the school and the student’s home. Some parents may be very supportive and advocate for the student with the school. Other students may not have a supportive home environment. In those cases, schools should develop a plan for information sharing which supports the student, while balancing a parent’s right to information. Any plan for sharing information must comply with all applicable laws, regulations, policies and guidelines. Privacy considerations may also vary with the age of the student.
For grades 9-12, the transcripts of all students must be permanently maintained; academic records may be permanently maintained. See State Board of Education Rule 2113. To the extent that the school is not legally required to use a student’s legal name or sex assigned at birth on school records and other documents, the school should use the name and gender preferred by the student. This may require the school to maintain two sets of records (one with the student’s legal name and sex assigned at birth kept separate from routine school records) to avoid inadvertent disclosure.
With respect to student medical records, school nurses and other licensed professionals need accurate and reliable information in order to ensure that the student receives appropriate care and to enable them to coordinate care with other health providers or licensed professionals, as well as to file health insurance claims with other organizations such as Medicaid. Nurses are required to accurately document clinical information relating to a patient and are also required to keep patient health records confidential. In the case of a transgender student, a school nurse should use the student’s chosen/preferred name, and should use the student’s birth name only when necessary to ensure the student receives appropriate care and to enable the school nurse to coordinate care for the student with other health care providers or licensed professionals, as well as to file health insurance claims.
School Records. Public school records should use the student’s preferred name and gender designation unless there is a legal reason not to do so. Nonofficial School Records. Records that document a student’s education should refer to a student by their preferred name and gender. For example, school identification cards should display the student’s preferred name. Official School Records. Education records mandated by law could require a school to use a student’s legal name and gender. For example, the documents related to state tests must report the student’s legal name. Schools should change the student’s name on official school records if the student provides documentation of a legal name change. Schools should change a student’s gender designation if a parent or student requests the change.
School staff can only share confidential educational and health information if they are permitted by law. In general, school staff should not share a student’s transgender or gender nonconforming status, legal name, or gender assigned at birth with others, who could include other students, school staff, and nonschool staff.
All persons, including students, have a right to privacy, and this includes the right to keep one’s gender identity private at school. Information about a student’s transgender status, transition process, legal name, or gender assigned at birth also may constitute confidential medical information. Disclosing this information to other students, their parents, guardians, or other third parties may violate privacy laws, such as FERPA. This is why schools must use caution when sending out any notification to other parents about a student who is transitioning. The District must ensure that all medical information relating to transgender and gender-‐nonconforming students will be kept confidential in accordance with applicable DC and federal privacy laws. School staff may not disclose information that may reveal a student’s transgender status or transition process to others, including parents, guardians, and other school staff, unless legally required to do so (e.g., such information is contained in an educational record under FERPA), or unless the student has authorized such disclosure. The only exception is when working with elementary-‐aged students. For more information, please refer to the discussion regarding Developmentally Appropriate Protocols beginning on Page 7 of this guidance.
Transgender and gender-‐nonconforming students have the right to discuss and express their gender identity and expression openly and decide when to share information, with whom, and how much to share. When contacting the parent or guardian of a transgender or gender-‐nonconforming student, school staff should use the student’s legal name and the pronoun corresponding to the student’s gender assigned at birth unless the student, parent, or guardian has specified otherwise.