Frequently Asked Questions to Help You Understand How School Personnel Misuse Privacy Laws to Conceal Information from Parents
Parents, not schools, possess the fundamental right to raise their children. (Troxel v. Granville (2000) 530 U.S. 57) (parents have a fundamental right under the Fourteenth Amendment to oversee the care, custody, and control of a child.) Parents have the right to direct activities and make decisions regarding the child’s care and control, education, health, and religion. This constellation of parental interests is “essential.” (Meyer v. Nebraska (1923) 262 U.S. 390, 399). Parental rights are among the “basic civil rights of man.” (Skinner v. Oklahoma (1942) 316 U.S. 535, 541). They are “far more precious … than property rights.” (May v. Anderson (1953) 345 U.S. 528, 533).
The purpose of this FAQ document is to provide accurate information regarding the Family Educational Rights and Privacy Act (FERPA), AB 1266 (codified as Education Code section 221.5) and other laws. School officials claim that these laws obligate all school personnel to conceal a child’s gender change from their parents if the child has requested that parents not be notified. This claim is both misleading and inaccurate.
What is FERPA?
The Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 CFR Part 99) is a federal law designed to safeguard the confidentiality of a student’s education records. FERPA protects the right of parents to access information about their child from the school and protects against third parties obtaining information about a student. FERPA grants specific rights to parents concerning their child’s educational records.
Does FERPA allow schools to hide a student’s gender identity from the student’s parents or guardian upon the request of the student?
No. FERPA does NOT grant rights to minor students to prevent a parent or guardian from accessing or seeing the student’s records.
FERPA DOES NOT give school permission to hide information from parents, including a child’s decision to change his/her gender identity, name, or other information. Even if a school characterizes the student’s gender identity as an “unofficial record” or some other euphemism, the school is violating both the letter and the spirit of FERPA and exposes itself to litigation. In fact, a school that has a policy to deny or effectively prevent parents from access to their student’s records can lose its federal funding. (20 U.S.C. §1232g(a)(1)(A) and (B) (Parents can protect against a school’s hidden agenda by routinely requesting their student’s school records. A sample FERPA request can be found here.)
Does the California Education Code require transparency with a student’s records?
Yes. Under California Education Code §51101(a)(10), parents have the right “to be informed by the school and participate in the education of their children of their children, as follows: . . . To have access to the school records of their child . . .”
What is AB 1266?
AB 1266 was enacted in 2013 and codified as Education Code 221.5. Schools routinely refer to AB 1266 by its bill number. This anti-discrimination law mandates only that students be allowed to participate in sex-segregated school programs and activities, such as athletic teams and competitions, and use school facilities, based on their gender identity, regardless of the biological sex recorded on their school records. It says nothing about concealing a student’s gender identity from parents.
Does AB 1266 require schools to withhold information from parents if their student is using a name other than their legal name, using bathrooms, or changing rooms, or participating in sports teams that does not correspond with their sex on their official records?
No. In the recent hearing in Mirabelli v. Olson [Escondido Unified School District], the attorney for California’s Department of Education (“DOE”) admitted that the Frequently Asked Questions on the DOE website page regarding AB 1266 is not law and does not need to be followed by schools. Judge Roger Benitez asked the DOE’s attorney, Len Garfinkel, directly whether it is the DOE’s position that the DOE is “not compelling the school District to enact this rule that they have enacted that says that teachers may not notify parents of what their kids are doing [related to gender identity].” Mr. Garfinkel replied with “Yes,” not once but twice. Simply, the DOE admits that it is not mandating that schools keep secrets from parents about gender identities.
AB 1266 pertains exclusively to the availability of classes, sports teams, bathrooms and changing rooms on the basis of gender identity, rather than biological sex. It specifies that “a student has the right to participate in sex-segregated school programs, activities, including sports teams and events, and utilize facilities in accordance with their gender identity, irrespective of the gender listed on the student’s records.”
AB 1266 does not address a student’s records, nor does it provide a requirement for, or a mechanism for, a school’s concealment from parents of a student’s use of bathrooms, changing rooms, or other facilities that do not align with the student’s biological sex, or the sex marked on their official records. AB 1266 contains no requirement that a school to deceive a parent about the sports team or class that their student participates in, or about the bathroom or locker room the student uses. AB 1266 is silent as to a student’s “chosen name” other than his/her birth name, and is silent as to a school concealing from parents the name or pronouns being used by a student. Any such interpretation greatly expands AB 1266 beyond its plain language. Schools that change a student’s name, depending upon the person being addressed, are deceiving parents and guardians.
Moreover, in changing a student’s name and treating him/her as other than his/her birth sex, such schools are unilaterally engaging in promoting a psychosocial intervention without the consent or knowledge of the parents, and may be practicing medicine without a license. Deceptive behavior places schools in precarious situations by inviting litigation by the parents, as has already occurred in two school districts in California. (See Konen v. Caldeira and Regino v. Staley.)
AB 1266 has never authorized concealing information from parents. Instead, it is the school’s responsibility to keep parents informed of any changes in their child’s gender identity, since school districts have no compelling reason, legal or otherwise, to deceive parents.
The law presumes that parents will act in the best interests of their own children. Public schools should not participate, intentionally or by omission, in hiding secrets from parents, nor collude with minors to deceive parents.
Does the California Constitution guarantee an unlimited right to privacy for minors?
No. The California Department of Education attempts to justify its current policy by citing Article 1, Section 1 of the California Constitution. This section states: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Minor’s privacy rights as against their parents are extremely limited. These rights do not include schools deceiving or hiding gender identity information from parents. In fact, as stated above, schools are obligated under FERPA to be forthright with parents. The limited privacy rights extend only between the minor and his/her doctor or attorney, not to public school teachers, principals, or administrative personnel, except as provided through FERPA. Most importantly, these rights DO NOT apply to the communication to parents of vital information about their minor children.
Students who present at school with a gender identity that does not comport with their biological sex, and who have shared that information with the school by name change, pronoun usage, choice of facility etc., are publicly sharing that information with everyone, except potentially with their parents. The child’s alternate identity is even shared with substitute teachers, school office staff, and parent volunteers.
In the 36-page order dated September 14, 2023, in which Judge Roger T. Benitez granted the preliminary injunction in Mirabelli v. Olson [Escondido Unified School District], he states that according to FERPA, the “privacy right of a child…takes second place to his or her parents’ right to know. Judge Benitez states that a secrecy policy “is as foreign to federal constitutional and statutory law as it is medically unwise.”
Judge Benitez confirms that no authority exists conferring upon children a privacy right in their gender identity as against their own parents: “Concerning the [claimed] California’s state constitutional right to privacy for minors and regulations like [a parent-secrecy policy], “the state’s highest court has not had occasion to issue a binding interpretation, and no state appellate court decisions have been identified.” Parents’ rights are superior to a right of privacy belonging to their child.”A parent may ‘curtail a child’s exercise of . . . constitutional rights . . . [because a] parent’s own constitutionally protected “liberty” includes the right to “bring up children.” ‘ ” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) “
Simply, there is no law granting a privacy right for a student who is gender dysphoric or experiencing gender identity issues.
What happens when a student tells a school counselor that the student is experiencing gender dysphoria or incongruence? Does the counseling relationship create a privacy right for the student?
It depends. If the student is under the age of 12, there is no confidentiality between the student and the counselor, and parents must give consent for counseling and have a right to know. If the student is age 12 or older, under existing law (which we believe is unconstitutional on its face), disclosure to parents must occur if the counselor has a reasonable belief that the student faces a clear and present danger of harming themselves or others. Since the California Attorney General asserts that 87% trans-identified students have contemplated suicide, the mere fact that a child is claiming an identity other than their sex is a “clear and present danger” and parents must be alerted.
However, if the counselor has a reasonable belief that that informing the parents presents a clear and present danger to the student of harm by his/her parents, disclosure under current law is not permitted. A hunch or a statement from the student that their parents will not be supportive is an insufficient basis for excluding parents.
We have drafted a Parental Notification Policy that directly addresses the counseling issue.
Chino Valley Unified has been sued by California’s Attorney General over its parent notification policy. Will we be inviting a lawsuit if we pass this Parental Notification Policy?
It is true that AG Rob Bonta filed a lawsuit against Chino Valley claiming that the Parental Notification Policy violates the California Constitution, Article I, section 7. That section states, in pertinent part, “[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws…,” claiming that because sex and sexual orientation is a protected class, so must gender identity be a protected class. However, AG Bonta cites no legal authority supporting his claim that gender identity is a protected class under the California Constitution, because there is none.
AG Bonta’s lawsuit also alleges that the Parental Notification Policy is discriminatory under the California Education Code section 220 because it “discriminates” against gender-confused students. Again, AG Bonta cites to no legal authority that interprets the prohibition of discriminatory actions in any program or available conducted by a school on the basis of gender identity as affecting notification acts between the school and the parents of pupils. Students experiencing a mental health crisis are not a protected class, and certainly not from their own parents.
AG Bonta claims that Chino Valley’s policy violates Government Code section 11135 (regarding benefits or access to programs operated by the state). This Code section does not mention gender identity and, again, has no bearing on the Parental Notification Policy, even if gender identity were referenced. A student is not being denied any benefits or access to a program or activity operated by the state by virtue of the parent being informed that their child is exhibiting gender confusion or gender dysphoria.
Lastly, AG Bonta asserts that the policy violates Article I, section 1 of the California constitution, which provides, “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Once again, Bonta cites to no case law for his flimsy argument.
Will AG Bonta sue each school district that adopts a Parental Notification Policy?
Unlikely. To date, AG Bonta has sued only Chino Valley, but he is using his office to pressure the other six school districts that have passed Parental Notification Policies. He sent letters to Dry Creek, Rocklin, Temecula, Murrieta, and Anderson. Orange County also adopted a policy, about which AG Bonta has remained notably silent. Politically, it will be a “bad look” for AG Bonta to sue additional school districts. Still, he is being used as the “straw man” for Governor Newsom, who is desperately attempting to avoid this question: “Should schools lie to parents about their children’s gender identities?”
Law firms are ready to defend school boards that pass Parental Notification Policies. One such law firm is Liberty Justice Center, who is defending Chino Valley Unified.
What are my rights as a teacher if I don’t want to keep secrets and lie to parents?
Under Mirabelli v. Olson, teachers are not required to violate their moral belief systems. Moreover, Education Code section 233.5 requires teachers to instruct students on “the principals of morality, truth . . . and to avoid idleness, profanity and falsehood ….” In addition, another employment case is pending in the federal court in the Central District of California, Tapia v. Jurupa Unified School District. Physical education teacher Jessica Tapia was terminated because of her beliefs that counter gender ideology. This case is pending but given the opinion in Mirabelli, the case is likely to be decided in favor of Ms. Tapia.
What about abusive parents? We want our school to be a safe place for students.
There is no evidence that parents harm their children if they learn their child is experiencing gender dysphoria. Chino Valley last month informed 15 parents of their child’s gender identity and not one of those parents disowned their child or had abuse charges made against them. None of the more than 2,500 parents of Our Duty or the 3,000 plus parents in Concerned Parents have abandoned their minor children, even though these parents do not affirm their children’s gender identities.
When disclosing failing grades, misbehavior at school, truancy, and the like, schools do not withhold information on the basis that some parents might have adverse reactions to that information. They simply provide notification.
Laws already exist that protect children from abuse. If a mandated reporter knows or suspects that a child has or is being abused by parents, they must report the parents.
A blanket assumption that all parents will be abusive upon learning their child is suffering from gender dysphoria is the antithesis of American jurisprudence and a violation of the parents’ due process. Simply, one is innocent until proven guilty, and parents have a right to defend themselves from a claim of abuse, therefore the claim must be communicated to the parent. Assumptive and presumptive abuse allegations are unconstitutional.
Those who wish to continue secret social transition plans rely on a 2015 study, the U.S. Transgender Survey (a survey of questionable repute) to conclude that parents will abuse their gender-confused children. Attorney General Rob Bonta in his complaint states that 10 percent of the respondents in the study “experienced violence” from an immediate family member.
AG Bonta missed the mark by a mile. First, he misread the report and took great leaps in reasoning. The study occurred in 2015, well before the explosion in adolescents claiming they are transgender. Second, the report is about adults, not adolescents, and has little bearing on children. Third, the number of respondents who experienced violence was directly dependent upon the time period when they transitioned. The farther back in time, the higher percentage of violence. E.g., in 2015 the violence rate was 8%, when ten years earlier in 1995, it was double that. But most importantly, there is NO DATA on whether the family member who allegedly was violent was a PARENT, nor is there any indication what “violence” means, or whether the victim had experienced violence from the family member before transitioning, showing a pattern of violence. Last, there is no data that the alleged violence occurred while the trans-identified person was a minor. In other words, the 2015 Survey data cannot be extrapolated to predict whether parents of the new cohort of adolescents adopting transgender identities will harm their children. (To put the claims in context, 5.4 percent of California minors were victims of abuse regardless of transgender status.)
AG Bonta asserts that 15% of the survey participants were kicked out of their homes or ran away. Bonta is once again playing fast and loose with the survey. If the survey is to be believed, 7% of the respondents in 2015 were asked to leave their families’ home. But there is no indication that those who were asked to leave were minors. 8% of the respondents RAN AWAY from home. Notice how Bonta added the two numbers together to give the impression that more trans-identified people were kicked out their homes.
A glaring omission from the 2015 survey is the lack of locality. What are the statistics of Californian parents throwing their minor children out in 2022 because they suffer from gender dysphoria? Using Chino Valley as a real example, the answer is zero.
Does the Chino Valley Policy need to be broadened? Isn’t the language discriminatory because it references “transgender” students?
No. Merely because a policy mentions only a few types of mental health issue – gender dysphoria and suicidality – does not make the policy discriminatory. Moreover, students are not transgender; they are experiencing gender dysphoria, a mental health issue listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
Moreover, most school boards have had existing policies that specifically call out special treatment for students with Intersex condition and who identify as being Nonbinary, transgender and gender-nonconforming. These were not seen as discriminatory.
By way of example, Policy 5145.3found in my schools specifically refers to
“Issues Unique to Intersex, Nonbinary, Transgender and Gender-Nonconforming Students”
Broadening the language to include a notification to parents about everything related to their student will invite a teacher’s union fight and place teachers in an untenable position to become mental health providers and diagnosticians. Most schools have notification policies that are sufficient to involve parents in decisions that affect their students, with the exception of gender dysphoria. The model policies we support here are narrowly tailored, designed to address secrecy policies enforced by schools to conceal from parents that a student is experiencing a mental health issue. The model policies do not require a teacher to discern, divine, or conduct an investigation about the child’s gender identit. On the contrary, the model policy requires a school to involve the parents, within three days, when the student takes any of these overt actions: (1) asking for a new name (pronouns), (2) using or asking to use opposite-sex facilities and sports teams, and (3) change his or her official records. There is no special training needed for a teacher to observe or document any of those requests by their students
What about suicide? Won’t notifying parents result in more kids committing suicide?
No. California’s Attorney General Rob Bonta’s recent lawsuit claims that “Eight-six percent of transgender youth reported suicidal thoughts, and 56 percent of transgender youth reported a previous suicide attempt.” Assembly Bill 665 (2023-2024) states in its Declaration, “[a] shocking 78 percent of LGBTQ+ youth who were surveyed shared they had considered suicide, with the vast majority of those who had considered suicide sharing they had done so in the last year, and nearly one-third had made an attempt in the past year.”
Attorney General Bonta uses suicide as a basis for withholding from parents the information that their student is experiencing gender dysphoria or gender incongruence. What AG Bonta ignores is that the National Institution of Mental Health’s Understanding the Characteristics of Suicide in Young Children—which found that 95.5% of all suicides in the young children (ages 5-11) happen at home. This statistic is also mirrored in the older students. Based upon the National Center for Education Statistics, of the 25 violent deaths at schools in 2019-2020, 1 was a result of suicide in students ages 5-18. From 2009/2010 to 2018/2019, an average of 5.3 students took their lives while at school in the United States. When one compares that figure to the number of suicides in 2018-2019 of children ages 10-14 (546 suicides) and young adults ages 15-24 (6062), it’s clear that the vast majority of students commit suicide outside of the school site. How is Mr. Bonta’s secrecy plan safeguarding students from suicide when almost all suicides by minors happen at home? Remember: school is in session for about 180 days a year, and students are in class 6 hours a day. If 87% of gender-confused student are suicidal, then hiding this fact from the parents–who do not close their doors or disappear for summer break, and who are available 365 days a year–places the student in a clear and present danger.
Is it true that teachers will lose their teaching credentials for refusing to lie?
No. The DCTA recently sent a threatening letter to its members that they could have their credentials suspended for “breaking the law.” The DCTA is wrong, because the U.S. Constitution is the supreme law of the land, and therefore, parental rights are absolute, with few exceptions. As stated above, schools cannot mete out medical interventions on students without parental consent, nor do students have privacy rights related to their gender dysphoria. Even if privacy rights exist, which they do not, the student has waived those rights by publicly adopting a gender identity while at school. This is a tactic being employed to coerce teachers to capitulate to an illegal policy of lies and deception.
In the hearing in Mirabelli v. Olson [Escondido Unified School District], the attorney for California’s Department of Education (“DOE”) admitted that the Frequently Asked Questions on the DOE website is not law and does not need to be adhered to by schools. The DOE’s attorney Len Garfinkel responded to the judge’s inquiry as to whether it is the DOE’s position that it is “not compelling the school District to enact this rule that they have enacted that says that teachers may not notify parents of what their kids are doing [related to gender identity], with a resounding “yes” not once, but twice. Simply, the DOE admits that it is not mandating that schools keep secrets from parents about gender identities.
Can School Boards just continue the status quo and wait to see what happens with other Boards?
They can, but they risk being sued by the parents for socially transitioning their child without consent. Jessica Konen just settled her case for $100,000 against Spreckels Union School District. This case cost more for the District, at least $150,000 in attorney’s fees plus potentially the salaries of the two suspended teachers in the middle of the controversy. A second case by a parent who was lied to is on appeal and will likely cost the district in excess of $1 Million dollars. Two school boards have been sued by teachers for their secret policies (Mirabelli case and Tapia case).
Parents are making requests for records to see if their school has secret social transition policies for their children or as a matter of course. A request for records shows that Irvine There are 5.8 million students in the public school. If only 1% of the parents of the students file suit, thousands of suits will be filed. In Irvine Unified School District there are 110 Gender Support Plans (with 14 in the elementary schools). Assuming that 50% of those policies are “secret”, Irvine could see 55 lawsuits at a cost of $500,000 per suit. That’s $27,500,000 in costs that Irvine likely cannot afford. Furthermore, drops in enrollment will continue. California public schools has the lowest enrollment in the last 10 years and more parents are pulling their children from public school due to a distrust of schools.
Aren’t we outing students?
The Parental Notification Policies has nothing to do with sexuality. This is conflating having gender dysphoria, a mental health disorder, with being same-sex attracted. The Parent Notification Policies does not require a school to inform a parent if his student is gay, lesbian or bi-sexual. It requires that parent to be notified if his student is experiencing gender dysphoria, or gender incongruence, a mental health issue that the child believes that he or she was born in the wrong body pursuant to the Diagnostic and Statistical Manual of Mental Disorders (DMS-5). In a case decided on October 3, 2023 in Wisconsin, entitled T.F. v. Kettle Moraine School District, the court made it clear that social transition – calling a child by a different name, using different pronouns and treating the child as a gender that does not comport with his sex–is a medical intervention. The court stated:
[Parents] have introduced uncontested expert affidavits explaining that this is a medical issue as they offer insight into transgenderism and how both medical and social conditioning can impact a child’s mental health. Of particular importance to note is that both [Plaintiffs’] doctors agree that living a “double life” where a child’s gender roles are different at home and school, is “inherently psychologically unhealthy” and can undermine existing support structures for that child. Both doctors do note that all professional organizations that have handled these types of scenarios suggest a child receives professional evaluation, but none have said that a school district should continue the process of treating or addressing that child’s alternative gender identity without “parental consent and buy-in.
The court held unambiguously that social transition “is undisputedly a medical and healthcare issue” and schools are not empowered to make such decision.
The notification to the parents is triggered when the student takes an action – requests the school to assist him or her in his or her social transition – using a new name and misaligned pronouns, joining a single sexed sports team, or using a bathroom or changing facility, that does not comport with his sex, using bathrooms or requesting a change in his or her records.
What’s the big deal, so a student wants to be called a different name and be treated differently?
Social transition is a direct predicter of who will medicalize and become a lifelong medical patient and who will return instead to comfort in their natural, unaltered body. A child who is affirmed by the adults around them will continue to believe that he/she is in fact the opposite sex. In contrast, children who are not affirmed have an upwards to 98% chance of becoming comfortable in their natural body.
According to the former President of the United States Association of Transgender Health and former psychologist at UCSF’s adolescents gender clinic, Dr. Erica Anderson (a transwoman), a school should never socially transition a child without parental input. The Declaration of Dr. Anderson in the Mirabelli case states: “Embarking upon a social transition based solely upon the self-attestation of the youth without consultation with parents and appropriate professionals is unwise.” It is also a medical intervention being meted out and confirmed by unlicensed person as held in T.F. v. Kettle Moraine School District.
See the amicus brief of parents who removed their children from the public school that was secretively socially transitioning their children, and their children returned to comfort in their unaltered bodies before embarking on a path of the perpetual medical interventions. (Removal of sex organs requires a life time of synthetic hormones.)
What training will teachers receive and how will parent notifications work?
No special training is needed. It’s simple: the district can decide who at the school will receive the information from the teacher and then, in turn, inform the parents. Just like when the teacher marks a child absent from class, the attendance office automatically informs the parents. Schools receive annual training on LGBTQ issues. Adding the notification requirement can readily occur, but it is not even necessary. Teachers receive no special training when they report on an absent or late student. Notification to the parents can follow the normal course of notification for other notification requirements to the parents. No new process is needed.
What about Administrative Regulations related to the Parental Notification Policy?
We are putting together model administrative regulations. They should be ready in a few weeks.
Is it morally right and legally permissible to require school officials to reveal a minor’s gender transition to their parent or guardian?
Yes, a policy that promotes transparency and open communication between school personnel and parents regarding a minor’s gender identity is both morally correct and legally permissible. California’s Education Code section 233.5 states that teachers shall “impress upon the minds of the pupils the principles of morality, truth, … to teach them to avoid idleness, profanity, and falsehood, …” Parents have the right to participate in the education of their children, “as mutual and respectful partners”. (Educ. Code §51101.) Schools encouraging students to lie to parents and being active participants in that lie contradicts the law.
It is crucial to recognize that parents play a vital role in the lives of their children, and they have a fundamental right to be intimately involved in their education and upbringing.
It is universally accepted that children do better in school and are more socially and emotionally healthy when they have involved, informed, and caring parents. This is also true for children who identity as transgender. California codified this axiomatic principal in Education Code §51100 (b), which states, “Research has shown conclusively that early and sustained family involvement at home and at school in the education of children results … in improved pupil achievement.” From a legal standpoint, schools have a duty to protect the welfare of their students and to provide a safe and supportive learning environment. This includes respecting the role that parents play in the lives of their own children, the students. By working collaboratively with parents, schools can better meet these obligations and create a positive working partnership with students and their families.