Privacy plays major role in new federal government guidance on transgender student rights

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Restroom Sign

Recently, the Department of Justice and the state of North Carolina have filed counter-suits regarding the state’s so called “bathroom bill.” The North Carolina “Public Facilities Privacy & Security Act” requires students to use public restrooms that correspond with their sex assigned at birth and not with the gender with which they identify. On Friday, the Department of Education and the Department of Justice co-authored a Dear Colleague letter directed at public school districts across the country to provide guidance on transgender access. In this guidance, privacy considerations play a significant role in protecting student rights.

The primary law dealing with student privacy in public schools is the Family Educational Rights Privacy Act (FERPA), which limits access to student records to parents and to members of the school community who have a clear need for the data for educational purposes.  FERPA limits further disclosures to specified situations, and primarily to the extent that the specific student data is necessary for the educational purpose being performed. The Departments’ guidance spells out that any nonconsensual disclosure of personally identifiable information (PII), such as the student’s sex or name at birth is an unwarranted disclosure that has the potential to harm a student.

One broad exception under FERPA allows disclosure of “Directory Information,” under which a school may choose to release previously-specified information such as name, birthdate, home address, email, and school grade and activities. However, the Departments’ letter makes it clear that FERPA prevents schools from designating a student’s transgender status as directory information, and that this is due to concerns about student privacy.

FERPA is also not the only law at issue. As the letter points out, “Protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity. The Departments may find a Title IX violation when a school limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.”

Consistent with FERPA, the current guidance does not require schools to amend educational records to reflect a student’s gender identity or name change upon request, however it does emphasize a student’s right to request a change or include comments about information in the educational record they deem to be inaccurate.

Echoing the language in the law, the letter reminds schools that “If the school does not amend the record, it must inform the requestor of its decision and of the right to a hearing. If, after the hearing, the school does not amend the record, it must inform the requestor of the requestor of the right to insert a statement in the record with the requestor’s comments on the contested information… That statement must be disclosed whenever the record to which the statement relates is disclosed.”

Title IX will apply to the procedures for change requests as well since “under Title IX, a school must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records.” That is – if a student or parent requests a change to the record, the school must respond consistent with its usual process for such requests. If the parent complains about the school’s handling of such a request, the school must “promptly and equitably” resolve it under the Title IX grievance procedure the school has in place.

The responsible collection, use, and protection of student data is critical to each child’s success in school. Those who need access to data to provide educational services must have it, but further disclosure, whether within or outside the school community must be carefully controlled, and permitted only in the context of further FERPA exceptions. Particularly in the context of sensitive data like a student’s gender or gender identity, schools must be mindful that disclosing information without consent could do irreparable harm to a student and, as is made clear in the letter, would be a breach of a student’s right to privacy.  Any deviation from these standards would constitute a clear disregard for one of our most vulnerable student populations.