Is it the Law?

The members of the BOE supporting this say allowing trans students to access the restroom that matches their identity is a requirement of the law, that letting students choose their pronouns and choose to have the school keep that info from parents is “the LAW.” But are they right? Let’s look at the laws they claim have forced their hand:

1)“It’s in the Human Rights Law”

The members of the BOE supporting this say allowing trans students to access the restroom that matches their identity is a requirement of the Human Rights Law (NY State Executive Law Article 15) 296 4. Here is that text:

“4. It shall be an unlawful discriminatory practice for an educational

institution to deny the use of its facilities to any person otherwise

qualified, or to permit the harassment of any student or applicant, by

reason of his race, color, religion, disability, national origin,

citizenship or immigration status, sexual orientation, gender identity

or expression, military status, sex, age, marital status, or status as a

victim of domestic violence, except that any such institution which

establishes or maintains a policy of educating persons of one sex

exclusively may admit students of only one sex.”

The BOE ASSUMES that “facilities” must include the restroom of their choice, including those that do not match their biology. But the provision of GENDER-NEUTRAL BATHROOMS is ALSO a proper way to fulfill this law, one that has been in force for years.

GENDA (Gender Expression Non-Discrimination Act) and SONDA (Sexual Orientation Non-Discrimination Act) similarly do not require transgender or gender expansive students to be able to use any bathroom; a GENDER NEUTRAL BATHROOM will suffice to meet the conditions of these laws. It is like a student with a physical disability who needs a specialized bathroom. Having NO bathroom would not be meeting the child’s needs, but the school does not need to adapt every bathroom or any particular bathroom to meet the requirement of the law.

2) “It’s in the 42-page “Creating a Safe, Supportive and Affirming School Environment for Transgender and Gender Expansive Students” and its “2023 Legal Update and Best Practices”

The members of the BOE supporting this say allowing trans students to access the restroom that matches their identity and calling them by their preferred pronouns is required because of these documents. However, the Disclaimer from pg. 4 of the Creating a Safe, Supportive….” Document says this:

“The Department supports the efforts of school communities to implement this update, which is intended to be both a resource and an important reminder for New York State public schools to adhere to the Dignity for All Students Act and other non-discrimination laws and regulations discussed throughout the update. It includes links to websites that contain information, resources, and tools to assist public schools. Please evaluate each resource to determine if it is developmentally and age appropriate for your school population. The State Education Department does not endorse any of the programs cited herein. The intent of this document is to provide information only. Public schools and Boards of Cooperative Educational Services (BOCES) should consult with their school attorneys regarding specific legal questions. Analyses of examples contained herein do not represent official determination(s) or interpretation(s) by the Department. Actions of a public school or BOCES may be the subject of an appeal to the Commissioner of Education under section 310 of the Education Law; as a result, the information contained herein is advisory only and does not necessarily represent an official legal opinion of the Commissioner of Education or the State Education Department.”

The 42 page “Creating a Safe…” document clearly states it is not THE LAW, but only a guide (written by the activists at the state education department, who are not lawmakers, but bureaucrats).

Additionally, the 2023 Legal Update to “Creating a Safe…” Frequently Asked Questions notes:

“Q: Is this update legally binding?

 A: The update outlines school districts’ legal responsibilities to increase the safety, and well-being of TGE students in their schools, and provides best practices that protect everyone from discrimination. It will be up to local school leaders to confer with their legal counsel to ensure they meet the needs of and support all their students. This is a resource designed to help public school administrators, teachers, student centered support personnel, school staff, students, parents/guardians, and the community continue to take proactive steps to create a culture in which transgender, gender expansive, and nonbinary students feel safe, supported, and included.”

The Q&A of the 2023 Legal Update to “Creating a Safe…” clearly state it is UP TO SCHOOLS TO CONFER WITH LEGAL COUNSEL and never claims to be legally binding.

3) “It’s required by FERPA”

The members of the BOE supporting this oddly cite FERPA, the Family Educational Rights and Privacy Act of 1974, a federal law that gives parents the right to see and in some cases, amend, their child’s educational records until the child turns 18. This PARENTAL RIGHT enshrinement cannot be used as an excuse for EXCLUDING PARENTS from elementary, middle school or high school students’ records. IT LITERALLY SAYS THE EXACT OPPOSITE: PARENTS HAVE A RIGHT TO KNOW & SEE THEIR CHILD’S RECORD. The child does not become eligible to control their record until eligibility at AGE 18.

Here it is:

“Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.”

Additionally, if schools feel a child has an unsafe home environment, it is their responsibility to report this to Child Protective Services, not to deal with issues of student fear and home safety by covertly deceiving parents. School personnel are not equipped to deal with these situations, lacking both the necessary education and certification.

4) “It’s required by DASA” (Dignity for All Students Act)

The members of the BOE supporting the use of whatever bathrooms a transgender student chooses and whatever pronouns they prefer also say they are required to do so by DASA, the Dignity for All Students Act, because that Act is a non-discrimination act which protects transgender and gender expansive students. The Act states that no student should be subject to harassment as follows:

"HARASSMENT" SHALL MEAN THE CREATION OF A HOSTILE ENVIRONMENT BY 27 CONDUCT OR BY VERBAL THREATS, INTIMIDATION OR ABUSE, INCLUDING CONDUCT, 28 VERBAL THREATS, INTIMIDATION OR ABUSE BASED ON A PERSON'S ACTUAL OR 29 PERCEIVED RACE, COLOR, NATIONAL ORIGIN, ETHNIC GROUP, RELIGION, RELI- 30 GIOUS PRACTICE, DISABILITY, SEXUAL ORIENTATION, GENDER OR SEX, THAT HAS 31 OR WOULD HAVE THE EFFECT OF UNREASONABLY AND SUBSTANTIALLY INTERFERING 32 WITH A STUDENT'S EDUCATIONAL PERFORMANCE, OPPORTUNITIES OR BENEFITS, OR 33 MENTAL, EMOTIONAL OR PHYSICAL WELL-BEING; OR CONDUCT, VERBAL THREATS, 34 INTIMIDATION OR ABUSE THAT REASONABLY CAUSES OR WOULD REASONABLY BE 35 EXPECTED TO CAUSE A STUDENT TO FEAR FOR HIS OR HER PHYSICAL SAFETY.

In their interpretation, the BOE members in favor of accepting this “guidance” apparently believe that:

not being able to use a restroom that matches their gender identity is a HARASSMENT or HOSTILE LEARNING ENVIRONMENT for gender expansive or transgender students,

BUT

forcing YOUR son or daughter to use a bathroom or locker room that is being used by members of the opposite sex ISN’T HARASSMENT OR CREATING A HOSTILE LEARNING ENVIRONMENT.

Don’t believe them when they say they want to make it work for ALL STUDENTS.

It’s just another activist talking point. If you want it to work for YOUR STUDENT, you will need to fight.