Communities debate Policy 5756 and “forced outing” amendments
In 2018, more than 570 New Jersey school boards adopted a policy intended to protect transgender and gender non-conforming students. Now, five years later, school boards across the state are dropping the policy after realizing its acceptance is voluntary.
Policy 5756, the Transgender Student Guidance for School Districts, is a policy set forth by the New Jersey Department of Education. The outline for the policy originated back in March 2017, when the Democratic-led state legislature introduced the bill following a slew of individual “bathroom policies” developed by schools.
That same year, on June 21, former governor Chris Christie signed the bill, requiring the NJDOE to provide guidance to public schools about policies for transgender students. This effort was applauded by many LGBTQ activist groups, including Garden State Equality).
“These guidelines are needed to ensure that transgender students can safely be themselves without fear of being persecuted, and can help promote a culture of understanding and acceptance that will hopefully influence how students treat each other in and outside of school,” former New Jersey Assemblywoman Valerie Vainieri Huttle, one of the Democratic sponsors of the measure, said in 2017.
Fast-forward to 2023, and school boards across the state are now deciding to do away with the guidelines altogether, claiming the guidelines are unnecessary, and that they were lied to about its importance.
This decision for some school districts to ditch Policy 5756 comes after a long six months of debating its contents. Originally, schools attempted to amend a particular part of the guide they disagreed with.
The disagreement school boards have with Policy 5756 is connected to the “Student-Center Approach” section of the guide, which states educators have no obligation to inform parents of their child’s preferred pronouns or gender identity.
“A school district shall accept a student’s asserted gender identity; parental consent is not required. Further, a student need not meet any threshold diagnosis or treatment requirements to have his or her gender identity recognized and respected by the district, school or school personnel. Nor is a legal or court-ordered name change required,” Policy 5756 states. “There is no affirmative duty for any school district personnel to notify a student’s parent or guardian of the student’s gender identity or expression.”
The guide specifies that there may be instances where parents and their child/children disagree on the student’s preferred pronouns. In this case, Policy 5756 advises educators to consult their board attorney regarding the minor student’s civil rights and protections under the New Jersey Law Against Discrimination, as well as provide resources to families regarding counseling and support services outside of the school district.
With the aggressive growth of the “parental rights” stance in not only the state of New Jersey, but in the nation as a whole, the policy’s “Student-Center Approach” has not aged well. And school districts are attempting to change it.
On May 16 of this year, Morris County’s Hanover Township adopted an amendment titled “Parental Notification of Material Circumstances,” aka Policy 8463. This policy would require educators to immediately inform children’s parents of “any facts or circumstances that may have a material impact,” on their well-being, which includes “sexuality,” “sexual orientation,” “transitioning,” and “gender identity or expression.”
The following day, on May 17, New Jersey Attorney General Matthew Platkin sued the district, filing an emergency motion in Superior Court to prevent the new policy from going into effect.
The amendment, Platkin argues, would also put the safety and health of LGBTQ students at risk, going against student confidentiality and privacy guidance from the NJDOE.
According to Platkin, Policy 8463 violates NJLAD because it discriminates based on sexual orientation or gender identity or expression, requiring parental notification for LGBTQ students, but not for others. The amendment, Platkin argues, would also put the safety and health of LGBTQ students at risk, going against student confidentiality and privacy guidance from the NJDOE.
“We will always stand up for the LGBTQ+ community here in New Jersey and look forward to presenting our arguments in court in this matter,” Platkin said. “We are extremely proud of the contributions LGBTQ+ students make to our classrooms and our communities, and we remain committed to protecting them from discrimination in our schools.”
Hanover Township denies Platkin’s claims, releasing a statement proclaiming their amendment is in no way discriminatory nor a target against transgender and nonbinary students.
“Contrary to the Attorney General Office’s erroneous assertions, Policy 8463 does not unlawfully discriminate against any student on the basis of any protected status whatsoever,” Hanover Township Public Schools said in the statement. “The Board will vigorously defend this common-sense policy that protects parental rights and ensures the safety of all school children.”
About one month later, on June 20, three other school districts — Manalapan, Marlboro, and Middletown — followed Hanover’s footsteps and adopted their own version of a “parental notification” amendment to Policy 5756. And just like in Hanover, the following day, on June 21, New Jersey’s Attorney General, in conjunction with Sundeep Iyer, director of the Attorney General’s Division on Civil Rights, filed a lawsuit against the districts, claiming these amendments were equally discriminatory toward transgender and nonbinary students.
“School policies that single out or target LGBTQ+ youth fly in the face of our State’s longstanding commitment to equality,” Iyer said. “Our laws prohibit discrimination on the basis of gender identity or expression, plain and simple, and we will not waver in our commitment to enforcing those protections.”
Children and parents opposing these amendments to Policy 5756 have made their voices heard at a majority of these school board meetings. In Middletown, the public comment section of their meeting lasted over two hours, with not one transgender student or parent of a transgender child speaking out in favor of their proposed “parental notification” policy.
“By outing students, you are doing a huge disservice to their physical, mental and emotional wellbeing,” a recent Middletown high school grad, who has medically transitioned, said addressing the Board. “You could be subjecting them to physical or emotional abuse from unsupportive parents.”
“You need to listen to trans people when we say you are putting us in danger,” the grad said.
Another recent grad told the Middletown board that its amendment comes at no request from transgender and nonbinary students, and that they are not listening to those who will be impacted by this decision.
“You need to listen to trans people when we say you are putting us in danger,” the grad said. “It is not your place to decide whether somebody is safe at home or not.”
About two months went by as these lawsuits were tried in court. By Aug. 18, Judge David F. Bauman sided with Attorney General Platkin in the Manalapan, Marlboro and Middletown lawsuits, stating in issuing his preliminary injunction that, “the state has demonstrated a reasonable probability of success on its claim that the Amended Policies, if implemented, will have a disparate impact on transgender, gender nonconforming, and nonbinary youth.”
Platkin was pleased with the ruling. “As the Superior Court correctly found, and as we have argued from the start, it is likely that these new policies violate the rights of our most vulnerable residents by discriminating against them on the basis of gender identity or expression.” he said.
For about a month, this ruling appeared to be a small win for LGBTQ advocates in the state. However, that all changed in early September, as the courts continued hearings in the Hanover amendment case.
According to The New York Post, Deputy Attorney General James Michael let slip a significant detail at one of the Hanover hearings that had “parental rights” supporters shocked and outraged. And that was the fact that Policy 5756 is not mandatory.
Back in 2017, Strauss Esmay Associates, a company that provides school regulation and policy consulting services to more than 570 school districts in the state, created a model policy that aligned with the state’s Transgender Student Guidance and distributed it. Philip Nicastro, the company’s vice president, said Strauss Esmay designated the policy as “mandated” for school districts because it believed the state guidance and administrative code required districts to have a policy, NJ Spotlight News reported.
“Policy and Regulation Guide topics that Strauss Esmay Associates classify as ‘mandated’ are topics not only ‘required by law, statute, or code’, but also classified as mandated if required for Federal program monitoring; New Jersey Department of Education’s Quality Single Accountability Continuum (QSAC) District Performance Reviews (DPRs); New Jersey Department of Education’s Comprehensive Equity Plan (CEP); New Jersey Department of Education’s Office of Fiscal Accountability and Compliance (OFAC) audits; other Federal and State agency monitoring requirements; and Policy and Regulation topics where the Federal and New Jersey Departments of Education provide comprehensive guidance documents to school districts,” Strauss Esmay stated in a memo regarding the policy controversy.
“In addition, Strauss Esmay may classify a Policy Guide as mandated because the issue has significant health and safety or liability implications for a school district. However, a Board of Education is free to accept, reject, or modify any Policy and/or Regulation Guides provided by Strauss Esmay Associates.”
This news not only angered New Jersey school districts who have been fighting to amend the policy, but also seemingly sparked an idea in one town that would change the course of its lawsuit.
On Sept. 11, during an emergency meeting, Hanover Township unanimously voted to simply do away with Policy 5756, repealing it from their district. This decision came while their “parental notification” amendment, Policy 8463, was on hold due to its ongoing lawsuit.
“Our view is that Policy 5756 without the benefit of Policy 8463 is unacceptable in its current form, said Gregory Skiff, a Hanover Board of Education member. “With no practical ability to modify it without potentially subjecting the board to further legal action by the attorney general, we have no choice but to reject it in its entirety.”
Hanover’s gutsy move to repeal Policy 5756 was inspirational to the “parental rights” crowd. And just like their original amendment, other school boards quickly followed suit.
School boards of Colts Neck, Lacey, and Lafayette have reportedly repealed Policy 5756. Many others across the state such as Millstone, Howell, Roxbury, Sparta, Hamilton, Freehold, Old Bridge, Long Valley, Westwood, Montague, and Frankford Township have all either taken steps toward dropping the policy, or are holding conversations considering a repeal.
“Not having a policy does not excuse a district from complying with the requirements of the law,” Platkin said.
While repealing Policy 5756 may appear to be a loophole in favor of “parental rights” arguments, doing so still opens up a case for discrimination.
“Not having a policy does not excuse a district from complying with the requirements of the law,” Platkin said.
Prior to school boards following Hanover’s lead, Platkin explained how repealing Policy 5756, in a similar way to amending it, may leave transgender and nonbinary students unprotected. Thus, dropping the policy may result in additional lawsuits.
“Defendants are correct that LAD-compliant Policy 5756 is not a mandatory policy, and that school boards were not required to adopt it when the Department of Education released its Guidance as directed by the Legislature, but as this Court is aware, Policy 5756 offers crucial protections to Hanover Township’s transgender students, including the right to use facilities and restrooms and to be addressed by the pronoun of the student’s choice,” Platkin said. “As Hanover Board of Education acknowledged when it adopted Policy 5756, these protections ensure that Hanover Township public schools ‘provide a safe and supportive learning environment that is free from discrimination and harassment for transgender students, including students going through a gender transition.’ The repeal of Policy 5756 will eliminate all of these critical protections.”