2021 | Schools

UPDATED: Families’ federal lawsuit challenges MCPS’ student gender identity guidelines

Parents have right to information that district wants to withhold, lawsuit says

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This story was updated at 10:55 a.m. Jan. 11, 2021 to include a statement from MCPS.

Two Montgomery County families are suing the school district, saying recently adopted guidelines about student gender identity violate state and federal laws.

In mid-2019, Montgomery County Public Schools updated its guidelines about student gender identity in a move activists called a “monumental shift” in its treatment of LGBTQ students.

The parents who filed the lawsuit argue that new language in the guidelines directing staff members to not disclose what gender a student chooses to identify as at school to parents — unless the student approves — violates the federal Family Educational Rights and Privacy Act (FERPA).

One national expert on the law says the parents are right.

FERPA, passed in 1974, prevents the public disclosure of students’ personally identifiable information, and gives parents the authority to access their children’s education records.

Because students can fill out a form detailing their gender and name preferences, the families argue it is an education record they are entitled to access, even if their child doesn’t want them to.

LeRoy Rooker, the former director of the Department of Education’s Family Policy Compliance Office, oversaw the implementation of FERPA for 21 years.

In a recent interview, Rooker said he agrees with the parents.

“Any kind of record about what a student’s gender preference is, parents absolutely have a right to that under FERPA,” Rooker said. “They don’t have to announce it or notify the parents of what the student has indicated, but it doesn’t matter if a student or school wants to disclose it. If they have a record on that, parents have a right to it if they request it.”

The caveat, Rooker said, is if there is no paper or digital record of the student’s preference or identity. But it “would be rather hard to believe” such documentation doesn’t exist for students who choose to identify as something other than their gender assigned at birth while at school, he added.

In an email, MCPS spokeswoman Gboyinde Onijala said the district could not comment on pending litigation. But, she wrote: “[W]e absolutely stand by our guidelines.”

“MCPS is committed to a safe, welcoming school environment where students are engaged in learning and are active participants in the school community because they feel accepted and valued,” Onijala wrote.

In their new lawsuit — which was initially filed in Montgomery County Circuit Court in October, then moved to federal court in late December — the two families say MCPS is “evaluating” minors and allowing them to socially transition genders without consent.

In fact, they argue, the guidelines “prohibit personnel from communicating with parents about this potentially life-altering and dangerous choice, unless the minor child consents.”

The guidelines do not explicitly say the information should be withheld from parents if it is requested, but they do suggest staff members should not willfully provide the information.

The guidelines say MCPS staff members should use the student’s legal name and pronouns that correspond to the student’s sex assigned at birth when communicating with their parents or guardians — again, unless the child says it’s OK to do otherwise.

The guidelines go on to say that just because a student shares their identity with staff members or other students “does not authorize school staff members to disclose students’ status to others, including parents/guardians.”

The document says disclosing information about students’ gender identity to their guardians could violate FERPA.

Rooker disagreed. Suggesting that the disclosure of the information to parents would violate the law is “disingenuous,” he said.

“There’s absolutely nothing in FERPA that would say they would violate FERPA by disclosing that to parents,” he said. “The violation would be in not disclosing it if the parents request it.”

The parents who filed the lawsuit are not identified. The complaint says the policy changes do not directly affect their children, who are enrolled in the school district.

“Plaintiff Parents cannot wait to challenge the MCPS Policy until they learn that one of their children experiences gender dysphoria,” the lawsuit says. “By the time (they) learn the truth, (Montgomery County Board of Education) personnel … may have already enabled their children to go through the process of transitioning socially to a different gender identity.”

That would hinder the parents’ ability to provide “acceptance, support, understanding, and professional assistance to their children,” it says.

The lawsuit says MCPS’ guidelines — particularly a form transgender students can fill out to help the district document their preferred name, pronouns and gender — violate another federal law, the Protection of Pupil Rights Act.

The Act, in part, says it is illegal for schools to require students to submit surveys or evaluations that reveal information about their sexual orientation without the prior written consent of the parent.

It is not required, however, for students, transgender or not, to fill out the MCPS form.

The parents have asked for the federal judge to declare that the MCPS guidelines violate state and federal law, and impose injunctions preventing their implementation.

The guidelines also include definitions of common LGBTQ phrases, information about different names and pronouns, student dress code, bullying and gender-separated activity areas like locker rooms.

In an interview in December, Mark Eckstein, chair of the Montgomery County Council of Parent Teacher Associations’ LGBTQ subcommittee, said the guidelines are intended to be a “road map” to help staff members positively interact with students.

Allowing students the freedom and flexibility to disclose their gender identity at school is intended to help provide a safe space for students who might not feel supported doing so at home.

But he said he understands parents’ concerns and is not surprised local parents have filed a lawsuit because there is little established case law on the subject.

“The ideal situation is to get the parents and child together and get everyone on the same page, but when that doesn’t happen, for whatever reason, it creates conflict,” Eckstein said. “But you do have a lot of instances where a child is out at school, but not at home. It’s not easy whatever way you cut it. Even if everyone is at their best, it’s a complicated situation.”

Caitlynn Peetz can be reached at caitlynn.peetz@bethesdamagazine.com