New York teachers and school administrators must call transgender students by their chosen name or pronoun or risk violating state and federal discrimination laws, according to new guidance released by the Department of Education (SED ) of the state this week.
The department published new guidelines for schools on the rights of LGBTQ+ students and how school staff should respond when a student identifies as a gender different from the gender assigned to them at birth following recent changes in state law and federal rulings on the issue .
SED officials received more questions from school administrators and parents about gray areas in the state’s existing guidelines, prompting the department to draft changes. A 30-member advisory group, including legal, education and health experts and LGBTQ+ students, met periodically from March 2022 through this April to finalize the legal update for New York’s schools.
“There were some areas of the old guidance that were ambiguous,” said Kathleen DeCataldo, system commissioner for the state Department of Education’s Office of Student Support Services. “Where we could be as clear as we could, we really wanted to do that.”
DeCataldo said Wednesday that the legal update provides information to schools and aims to combat the higher rate of bullying, dropout and suicide prevalence among LGBTQ+ youth. The department quotes a national survey this shows that at least 56% of LGBTQ+ students have experienced bullying based on their gender expression, and at least half have experienced some form of anti-LGBTQ discrimination at school.
“We wanted to make sure schools were aware of how critical their actions are regarding these students,” DeCataldo said. “…We wanted to be very clear about the rights students have.”
The original state guidance was published in July 2015. New York was one of the first states in the US to specify rules related to discussions of gender and sexuality in schools.
Under the updated guidelines, teachers, school administrators and staff cannot deny New York transgender students access to school facilities, events, restrooms, locker rooms or in the changing rooms. They cannot use a district’s dress code to dictate how a transgender student expresses themselves and must respect students’ identified gender or pronouns.
“Calling them the wrong pronouns, calling them by what they would refer to as their ‘dead name’ … those things are a violation,” DeCataldo said.
School staff should let the student, regardless of age, lead the conversation, he added.
State school personnel are encouraged to avoid or eliminate gender-based policies, rules, and practices, including same-sex physical education classes or having male and female students wear specific colors to graduation.
The rules apply to New York public, charter and private schools, BOCES, public colleges and universities, and universal daycare, but do not apply to private schools operated by a religious organization.
Transgender and LGBTQ+ students often come out at school earlier than at home, especially if they expect their parents or guardians to be unreceptive.
The guidance urges schools to accept a transgender student’s request to change their gender identity, claimed name and pronouns in district records and maintain student privacy and confidentiality.
School administrators must encourage students who come out to school to communicate with their parents, but the district is not required to notify parents or guardians if their child is transgender or identifies with a different name or pronoun unless they specifically request to see school records. .
“It’s a lot for the schools, that’s not easy,” DeCataldo said. “If the student says it’s safe, and when it’s not safe, [school personnel must] Really talk to the student about the possible ramifications, including, something could come back, could go home, and could have the students name claimed as an oversight. And that would just be an oversight because we’re telling schools that if a student has said it’s not safe for them, they should take every opportunity to not let that information get back to the parents. But always keep talking to the student and evaluate, seeing where they are and how they feel when taking different steps.”
Advocates say the state’s guidance will create a culture of acceptance and protect the state’s LGBTQ+ students and youth.
“Recent research from GLSEN shows that 83% of LGBTQ+ students have experienced bullying at school,” GLSEN Executive Director Melanie Willingham-Jaggers said in a statement. “As attacks continue against LGBTQ+ youth, particularly trans youth , GLSEN commends the New York State Department of Education for its new framework to support students and educators. “Safe” is the bare minimum, and every student deserves a safe and affirming learning environment with access to inclusive policies, curriculum, and school resources. When students have access to these resources, they thrive, and we encourage our leaders and administrators to continue to stand up for our most vulnerable students.”
But students discussing or expressing their sexuality or gender identity at school is a sensitive issue for parents, as states like Florida have banned the topic in public schools.
Jason McGuire, President of New York familiessays the new guidelines discriminate against parents and guardians.
“We see this as a parental rights issue,” he said Wednesday. “I mean, this is really the New York State Department of Education declaring war on parents. I don’t understand why the politicians, the bureaucrats, the board of regents, the commissioner in Albany are always at odds to parents instead of working with them.”
SED’s legal update misinterprets state law, said McGuire, who expects the rules to be met with legal action. It could also get more New Yorkers to pull their children out of public school, he said.
“Parents are responsible for their children, and that puts politicians, bureaucrats, in the shoes of mom and dad,” McGuire said.
The state Department of Education updated its guidelines as a late push was building in the state Legislature to pass legislation mandating the teaching of LGBTQ+ history for K-12 students. No proposal to make the change was approved in either house.
The guidance went into effect immediately, but SED has no mechanism to enforce its implementation in schools across the state.
“It is up to local school leaders to consult with their legal counsel to ensure they are meeting the needs and supporting all of their students and complying with the Human Rights Act and the Dignity for All New York Students Act,” according to the department. “This is a resource designed to help public school administrators, teachers, student-centered support staff, school staff, students, parents/guardians, and the community continue to take proactive steps to create a culture where transgender, gender-expansive, and non-binary students feel safe, supported, and included.”
SED recommends that districts have professional development to train teachers and staff on the new guidelines, but implementation will vary on a case-by-case basis.
“What we want all school staff to be prepared to do is respond appropriately and warmly to students so they feel supported,” DeCataldo said.
