The New York State Education Department (“NYSED”) released new guidance to support transgender and gender-expansive (“TGE”) K-12 students. This much anticipated update substantially expands previous guidelines issued eight years ago. Therefore, it is critical for school districts to know the key changes contained in the new guidelines and ensure their compliance with state standards.
I. Name and Gender Marker Changes
Compared to 2015 guidance, NYSED’s update elaborates — in greater detail — the procedures schools must follow when a TGE student wishes to change their name and gender marker from the ones assigned to them at birth. If a school fails to amend these records, NYSED warns such failure may violate New York’s Human Rights Law. The Gender Recognition Act provides that a name change order is sufficient to change a student’s name for any student record. An amended birth certificate, updated government I.D., or court order are sufficient to update student records for current and graduated students who obtained a legal name change. Records containing the student’s former name must be maintained in a separate and confidential folder or archived data location.
NYSED provides different guidance related to minor students who request to change their permanent records, but do not have a legal name change, as neither state nor federal law addresses whether parental consent is required in such circumstances. Accordingly, NYSED advises schools to consult with legal counsel for such requests from minor students; however, it is permissible for schools to change non-permanent records and address a minor student by their affirmed name upon request and in the absence of parental consent or a legal name change. Schools may honor requests to change school records of non-minor students without completing a legal name change and without parental consent. NYSED encourages school officials to clearly advise the student that making this change could result in their parent or guardians becoming aware of their affirmed name. Each request for a name or gender marker change should be documented.
Additionally, NYSED’s new guidance outlines specific procedures for certain types of school documentation. The following briefly describes how schools may respect a student’s affirmed name for these records.
- Working Papers: NYSED notes these papers must reflect the minor’s legal name. Therefore, the school should explain to a TGE student why their legal name must be used. The school may suggest to the student to ask their employer to use their affirmed name.
- Diplomas: Because a high school diploma is a ceremonial certificate, NYSED permits students to use their affirmed name on the diploma upon request. However, students should be advised that their parent or guardian may see their affirmed name. Graduates may also return to request their school reissue their diploma with their affirmed name.
- Standardized Tests: NYSED encourages use of a student’s affirmed name on standardized tests and advises schools to work with their management system provider to associate the data with a student identifier number.
- Health Records: NYSED asks school health records to note the student’s affirmed name and gender together with the student’s legal name and sex assigned at birth. School health professionals should only use the student’s legal name when required (e.g., for insurance purposes).
- IEPs and 504 records: NYSED requires all records to include the student’s affirmed name as well as the gender identity and pronouns asserted by the student. If a district cannot amend prior documentation to reflect the student’s affirmed gender, any following documentation and all prior information should be updated to reflect the student’s gender.
For a student’s gender marker, NYSED generally discourages including such information on student-facing or school-facing records. If the school includes this information, NYSED asks schools to have a clear process setting forth the steps necessary to update their gender marker. Moreover, for accurate reporting, NYSED requests schools to work with their management system vendor to offer an “X” or nonbinary gender marker.
II. Privacy, Confidentiality and Student Records
Generally, the new guidance remained similar to the previous concerning the confidentiality of student records. Whenever a TGE student uses an affirmed name, the legal name must be kept confidential by the school district, and the legal name may only be released for a legitimate educational interest among school officials. Schools are encouraged to work with TGE students to identify how and to whom this information should be shared. Because some students may not have disclosed their gender identity to their caregivers, friends, or other school staff, NYSED states that school personnel should keep this information confidential unless the student explicitly states otherwise. Students should be made aware the federal Family Educational Rights and Privacy Act (“FERPA”) permits parents or guardians to review educational records, including health records. A discussion about the scope of confidentiality should also occur when the student moves to another school.
Maintaining student confidentiality can be complicated by IEPs and 504 records. Because the Individuals with Disabilities Education Act (“IDEA”) and Section 504 requires historical documentation of a student’s education records, NYSED cautions there is a possibility of a student’s gender identity being disclosed against their will.
III. Inclusive Policies, Practices and Curricula
NYSED continues the general rule that gender-based policies and practices should be eliminated unless they serve a clear pedagogical purpose. However, due to changes in the law, NYSED specifies how schools may render their policies, practices, and curricula inclusive of TGE students, including within the general curricula, physical education and athletics, and health education.
IV. School Facilities
NYSED’s new guidance closely reflects the previous guidelines on restrooms: TGE students are entitled to use the restroom aligning with their gender identity. However, the new guidance now adds that, pursuant the Gender Expression Nondiscrimination Act (“GENDA”), schools cannot require a TGE student to use a single-stall restroom due to another person’s concerns, nor require documentation for a student to use such restrooms or other school facilities, including changing areas. To comply with the Education Law, schools must designate single occupancy restroom facilities as gender neutral. It is recommended these facilities be conveniently located so a student’s school day is not disrupted. Furthermore, to be inclusive of TGE students on school trips, NYSED asks school districts to consult with their school attorney on the laws of the destination state or nation.
V. Added Definitions
The new NYSED guidance expands on previous definitions and adds more terminology for standard use. Some of the new terms in the 2023 guidelines include, but are not limited to, affirmed name, assigned name, agender, gender expansive, intersex traits or variations in sex characteristics, nonbinary, and queer. Additionally, previously defined terms — such as transgender, gender nonconforming, and gender identity — are now elaborated upon to cover the depth and spectrum of LGBTQ identities and ranging experiences for students.
In light of NYSED’s new guidelines, school districts should review current policies and practices to comply with state standards. Harris Beach’s K-12 Education Industry Team continues to track important education issues throughout New York State. If you have any questions about the matters in this legal alert or any other related legal matters, please reach out to attorney Anne M. McGinnis at (585) 419-8613 and email@example.com, attorney Laura M. Purcell at (585) 419-8730 and firstname.lastname@example.org, or the Harris Beach attorney with whom you most frequently work. Summer Associate Max Sevor helped draft this legal alert.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.