Privacy, schools and social transition
At any given time for the past two years, dozens of bills have been proposed before state legislatures which seek to overturn privacy policies which have been enacted in the past decade to facilitate safe social transitions at school without “outing” students either to their peers or parents.
One recent example, Missouri Senate Bill 827 introduced on January 3, 2024 by Republican state senator Andrew Koenig, would require school personnel to notify parents within 24 hours if a student requests the use of a different pronoun or name. The preamble for the bill defines school personnel broadly, but explicitly names teachers, principals, counselors, and nurses, all of whom would be required to adhere to the 24 hour deadline.
While there are dozens of social transition bills being proposed at any time across the country, SB728 notably also contains an identical provision just above that which also mandates reporting “discomfort or confusion.” Section 7(2) states: “If a student approaches a school official to express discomfort or confusion about the student's documented identity, the school official shall notify the student's parent of the discussion within twenty-four hours”
The extremely short window required for action and the expansion of scope to include any disclosure that a student might be questioning their gender identity reflects a worrying escalation. By contrast, Indiana HB 1608, signed into law last year, only requires such notification in cases of a request to use different name or pronouns, and allows a 5 day window within which such notification must occur.
This is, however, not the first bill to require disclosure of transgender identity: an amendment to Florida HB 1557, known as the “Don’t Say Gay ” Bill, required parents to be notified in the event that staff become aware that a student is questioning either their sexual orientation or gender identity.
Social transition, the act of expressing one’s gender through the use of new names, pronouns, clothing, etc., has become a rallying cry for media outlets seeking to drive up ad revenue by claiming that schools “transitioned” students without parental consent. While many of these stories are outright falsehoods, many schools have indeed adopted “privacy first” policies which put students in control of when and how their gender is disclosed to others. These policies reflect an understanding that youth who choose to begin expressing their gender at school may not be ready to disclose this at home, or in more serious situations, may be aware that doing so might not be safe.
The ability to transition safely at school decreases the chances of social ostracism while also sending a signal that whoever the young person is, they are welcome at school. Such policies also reflect a knowledge that access to a single safe and affirming young adult has been demonstrated to be one of the single biggest protective factors for LGBTQ youth. The Trevor Project estimated that having access to just one safe and supportive adult reduced lifetime suicidal ideation by 40%.
Opponents of social transition policies have been claiming that the act itself “concretizes” trans identity— which is to say that once youth come out, they believe this somehow “locks in” their gender, whereas in the absence of affirmation the assumption is that the same youth would “desist”. They support this by clinging to the outdated research of people like Ken Zucker, who claimed that 80% of youth who report gender incongruence at an early age will grow out it. This statistic, while at this time thoroughly debunked, is a life-raft for pundits and politicians like Ohio State Representative Gary Click who wish to claim their harmful anti-trans policies are all just “trying to protect youth.” (This would perhaps be more believable if he didn’t also moonlight as a pastor who has practiced conversion therapy as a pastor, and who belongs to an organization that calls LGBTQ+ people “abominations before God”.) While no evidence has ever been provided to support this claim, these talking points have been increasingly common in legislative sessions, and were recently reflected in the UK’s deeply concerning guidance on social transition in schools.
Protections for LGBTQ+ youth stretch, unsurprisingly, back to the 1990’s when increased recognition that anti-gay bullying was driving an enormous uptick in youth suicide rates. IN 2019, 16-year-old Channing Smith died by suicide after being outed by classmates as bisexual. In 2011, 9 students died in 2 years by suicide in the Anoka-Hennepin School District, half of whom were known to be gay.
The lack of federal protections for sexual orientation and gender identity a decade ago meant that schools themselves frequently targeted openly LGBTQ+ students directly through discriminatory policies and disciplinary measures. 16-year-old Charlene Nguon was outed to her parents by school officials in 2004 after being suspended from school for kissing her girlfriend in public. Her mental health subsequently plummeted, as did her grades and she considered taking her own life. Her admission to UC Santa Barbara was revoked.
In 2002 in Arkansas, 14 year old Thomas McLaughlin was outed to his parents as gay, before school officials lectured him on morality and forced him to read the Bible. The subsequent lawsuit, where McLaughlin was represented by the ACLU, led to an overturning of this policy and the beginning of protections for queer youth in the state.
Of all the protections afforded to LGBTQ+ youth, perhaps the most important has been the right to confidentiality and privacy. In recognition that safe adults play a pivotal role in stopping abuse, suicide and bullying, schools have enacted policies which protect student confidentiality. For counselors and social workers, information related to sexual orientation and gender identity is strictly confidential. The right to confidentiality serves several purposes, the most important of which is that it allows the people being protected to play an active role in deciding how and when their information is shared, allowing them to avoid being outed to potential hostile peers or caregivers. Confidentiality has also been demonstrated to increase rapport-building, and improve youth comfort with accessing emergency mental health services. Youth struggling are more likely to disclose such things to a professional if they’re aware that their information will be kept private. This plays a crucial role in keeping the lines of communication open for youth to get help when it really counts— such as in the case of abuse, sexual victimization or suicide.
As school policies around gender identity have developed over the past several years, the same protections afforded to cisgender LGB students have been extended to transgender students as well, namely that staff in many school districts are prohibited from disclosing this information to anyone without explicit permission. Additional policies have been put in place to make it easier for youth to begin social transition, a necessary step in coming out. Research demonstrates that youth tend to disclose things to peers first, often testing the social waters before feeling comfortable taking bigger steps. Many students do these changes incrementally, to avoid drawing attention to themselves therefore minimizing ostracization.
According to the Movement Advancement Project, there are currently 5 states with “mandatory outing” provisions on the books, and several similar proposals have been introduced recently into state legislatures. According to the ACLU, 23 such proposals were introduced in 2023, and many of these bills have rolled over from the previous legislative session and are now still working their way through the legislatures at the time of this writing.
However, “forced outing” policies aren’t exclusively the province of lawmakers. In 2023, under pressure from far-right activists, the Chino Valley Unified School District in San Bernardino, California adopted a policy of mandatory outing of transgender students modeled after the laws mentioned above. Thankfully, this policy was injuncted after the state Attorney General brought suit against the district.
Recently however, anti-trans hate group Protect Kids CA has proposed a ballot initiative that would enact such forced outing policies, alongside a gender-affirming care ban and a host of other anti-trans measures. In response to this and the San Bernardino County case, CA AG Bonto has issued an alert to all schools stating that any such unauthorized disclosure is a violation of state law.
But perhaps the thorniest issue is a question of autonomy: if schools were required to disclose a student’s transgender status to their parents, and parents were to withhold consent for a social transition, whose wishes should be upheld? In the case of transgender youth, the case is quite clear. Simple steps associated with social transition like name changes have been empirically linked to dramatic decreases in depression and suicidal ideation, and positively correlated with improvements in mental health. Likewise, less simple changes like bathroom accommodations for transgender youth have been associated with decreased risks of bullying and sexual assault. As such, the choice to allow youth to socially transition is itself a dramatic act of harm reduction. So why are these policies under attack?
Perhaps not surprisingly, like so many of the threats facing trans youth right now, what had previously been a concern only among right-wing news outlets and media pundits reached the mainstream when the New York Times ran the story “When Students Change Gender Identity, and Parents Don’t Know”.
The story focused on the fact that at the time, the right-wing had a new and unexpected ally in the form of former USPATH president Erica Anderson. Anderson, a clinical psychologist and transgender woman herself, had filed an amicus brief opposing such policies on behalf of the Wisconsin Institute for Law & Liberty. WILL had sought the brief from Anderson in support of their lawsuist against the Montgomery Board of Education in Maryland and the Kettle Moraine School District in Wisconsin. While WILL’s case against Montgomery was dismissed for lack of standing, WILL and the Alliance Defending Freedom succeeded in their suit against Kettle Moraine.
Read Anderson’s brief here
Similar lawsuits are being filed around the country and can be found being exhaustively covered in conservative news outlets. Aware that these policies were put in place to shield trans youth from non-affirming families, many of these lawsuits also tellingly allege that such policies are violations of parents’ religious freedoms. Ultimately, the primary issue of contention is not the alleged lack of parental notification, but that schools would allow social transition at all. Groups like WILL and ADF seek policies which would allow parents the right to refuse their child’s name change, also forcing them to use bathrooms according to their sex assigned at birth and preventing them from accessing GSA’s and pride events.
In one case, Mead v. Rockford Public Schools the Alliance Defending Freedom attempts to argue that since social transition can be a "powerful psychosocial intervention", the use of chosen name and pronouns should be considered health care provision. ADF alleges that failure to approach the Meads about their child before facilitating a social transition was a due process violation, as they had a right to opine on the “moral upbringing” of their child. Moreover they argue that any discretion not to disclose their child’s gender identity to them was religious discrimination, and seek additional relief under the First Amendment.
Neither the Meads nor ADF are opaque about what they would do had the school approached them. On pages 32 and 33 of ADF’s filing with the court, in section IX, ADF outlines that the Mead’s faith teaches them that sex is immutable, and a part of God’s plan. As such, they state in line 227 that these beliefs would prevent them from affirming their child. In other words, had the school asked, the answer would have been a resounding no.
Forced outing of trans students to their families is only one facet of this highly coordinated campaign. Recently, several news stories and corresponding court cases demonstrate that the main sponsors of many of these bills have no intention of stopping with children of conservative parents. Instead, they seek to force schools to notify their peers when a student transitions, warn parents of other students when a transgender child is playing on a sports team or going on a field trip, and enforce genital inspections as a requisite of participating in school sports.
In April 2023, students at the Jefferson County Public Schools went on an ordinary field trip during over the course of which several girls shared a room overnight. While this is standard practice for students in this particular school, this trip became the subject of national controversy after one of the young students was discovered to be a trans girl.
While the exact specifics of the case are in contention, what is known is that the disclosure was made incidentally and verbally by the trans student who had no idea that she was saying anything wrong or untoward. One of the other girls called her parents, and the student was subsequently encouraged to switch sleeping assignments to another bed. In order to minimize any shaming of the trans student in question, school chaperones encouraged the student who had called her parents to frame the bed switch as something innocuous, in this case a desire to be close to the air conditioner. While initially she agreed, another student, upon hearing this, became concerned that the trans girl would also be too warm, and encouraged her to move closer to the air conditioner as well. What followed has been a legal battle during which the family, represented by the ADF, have alleged that this was a violation of their rights as parents and tantamount to a conspiracy.
After making an enormous fuss over the summer, the case appeared to die down. Meanwhile. ADF began demanding further information and expanding the scope of their objections. On December 4, 2023, ADF legal counsel sent a letter enumerating their various legal positions, which included the argument that schools have a duty to warn parents if trans youth are participating in school activities. A second glance at the letter tells an even more alarming story, namely that they seek all documents related to policy JB-R, the JCPS policy which governs transgender youth in the school district. ADF is demanding any and all records related to policies around transgender youth, as well as any times “such accommodations have been granted.” Meanwhile, ADF has been running targeted ads on Facebook and Instagram, pouring thousands of dollars into drumming up controversy. The Daily Signal, an official propaganda arm of the Heritage Foundation disguised as a news outlet has been running ads ads as well, featuring a video
In one particularly chilling page, ADF attorney Katherine Anderson argues that “stealth mode”, an expression used by trans people to describe situations where trans identity is not known, not disclosed (and frankly not anyone’s business), is an inherent violation of the privacy of cisgender children. Anderson argues that all people, parents and peers alike, have a fundamental right to know the private business of trans people, and that failure of schools to out students is somehow a violation of due process.
Impatient for legislative efforts to take effect, many conservative groups have been pressuring school boards to either overturn supportive policies, such as this one in New Jersey, or enact their own forced outing policies like in Moore County, North Carolina. In red states, Republican Governors have enacted their own policies through state departments of education.
Whatever the policy, anti-trans talking heads have yet to produce a shred of evidence to support the notion that social transition poses any negative ramifications. At best, they have been able to point to elevated rates of anxiety in socially-transitioned youth, and have suggested that this should be seen as a consequence of social transition. While these claims have been challenged in the medical literature, they also fail to account for the most likely explanation of high rates of anxiety among trans youth: transphobia.
Regardless of where you stand on parental consent for social transition, the history of nonconsensual outing is a deadly one. Any policies, laws or actions by school staff to effect forced outing attempt to bring us back to a time we should very much hope to avoid. Fortunately, policies such as these are not the only governing rules to which professionals like school social workers must adhere. For those of us in the various fields of mental health, such violations of client confidentiality are expressly forbidden. Try as they might, ultimately no law can mandate you to practice unethical care, and your allegiance to your clients and ethical practice should always come above all else.
For teachers and other school staff working in districts where such policies are being proposed, it’s important that these proposals make it into the spotlight. If you are aware of such a proposal, let me know. The opposition to trans rights is organized, well financed, and coordinated. We should be too.
Further reading:
Evan Ettinghoff, Outed At School: Student Privacy Rights And Preventing Unwanted Disclosures Of Sexual Orientation, 47 Loy. L.A. L. Rev. 579 (2014). Available at: https://digitalcommons.lmu.edu/llr/vol47/iss2/10.
