How to accommodate for a student’s gender identity is a hot topic in schools and the Utah State Board of Education is wading into the water with a draft that concerns some parents. They gave a short window for public comment, and today is the last day. Here is the Gender Identity Guidance https://usbe.az1.qualtrics.com/CP/File.php?F=F_d7r8CUXq45wqoSi draft and a survey https://usbe.az1.qualtrics.com/jfe/form/SV_6y7Q8gzAlA701ka for public response. Camille Williams weighs in.

“Draft 4 Gender Identity Guidance for Utah Public Education” is the Utah State Board of Education’s  effort  to provide information “associated with federal and state law” relative to  transgender and/or gender nonconforming students. There are some commonsense recommendations related to dress and grooming codes, records, athletics, activities, and clubs. Some recommendations for privacy in facilities and overnight trips complexify arrangements and increase costs.  The Board wants to eliminate bullying or discrimination, support student success, and avoid lawsuits—all laudable goals.  However, where such guidance substitutes the judgment of teachers and administrators for that of a child’s parents, it places an unreasonable burden on educators, it risks damaging the parent-child relationship, and it interferes  with parental rights and duties.

The Board states that “Schools should accept a student’s consistently asserted gender identity even if the gender identity is different from the biological sex.” That identity is to be recognized on the basis of “more than a casual declaration,” but without any necessary “substantiating evidence.” Since “[e]stablishing gender identity can present differently from student to student,” unless a parent informs the school about the child’s gender identity (GI),  educators have no clear-cut guide for recognizing this subgroup of students, “many” of whom have “co-occurring mental health conditions” which put them at higher risk of negative outcomes. (pgs. 2-3)

While the presumption (6, 9) is that educators work with a student  to “appropriately inform parents” about a GI request, if the student is “without a concurring parent,” the educator will be the judge of whether it is safe to inform the parent, or  better to respect the student’s privacy. (pgs. 6, 9b)). Educators might not always make the right decisions, as alleged in cases from California (https://nypost.com/2022/01/24/mother-sues-teachers-for-brainwashing-student-to-identify-as-transgender/ ) and Florida (https://www.breitbart.com/politics/2021/11/16/florida-parents-sue-school-for-secretly-transitioning-13-year-old-daughter/ )  Because this is an unsettled area of law, the Board rightly seeks to remove individual teachers from the decision-making process, or from counseling students about GI (pgs. 8-9) or compelling “students to use certain pronouns when referring to self or others.”  

The elevation of student privacy over parental involvement reflects the contemporary push toward increased sexual autonomy for minors, and the view that  federal agencies will enforce those autonomy rights against schools and parents when disagreements arise.  The Board concludes that ”[s]chools should respect parents’ decisions for their children while balancing these decisions with constitutional, legal, and civil rights.” (pg. 9d) It is understandable that the Board desires to comply with law and avoid lawsuits, but it is puzzling that the one clear lawsuit-trigger listed—an educator refusing to refer to a student by an agreed-upon alternative name/pronoun—is linked to a citation that does not fully support that conclusion(pg. 9) (See https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-202106.pdf ), and is directly contradicted by agency advice from 2020 (https://www2.ed.gov/about/offices/list/ocr/correspondence/congress/20200309-title-ix-and-use-of-preferred-pronouns.pdf ).

The Board may have to decide whether the problem that should be addressed is the premise that it is more beneficial to affirm the manifestations of gender dysphoria in minors than it would be to help children learn to respect and appreciate their own physical bodies and understand the wide range of activities available to both sexes. Erika Bachiochi  has pointed out that we don’t accept an anorexic teen’s view of herself as obese and  put her on a diet or provide her with bariatric surgery. Why then should we be constrained by a child’s view of gender?

It is a mistake to assume  that a minor–whose developmental stage makes him or her dependent upon parents for the necessaries of life, who needs parental permission to obtain a driver’s license, a piercing, or obtain most medical care–has developed sufficient wisdom to make long-term, rational decisions about gender dysphoria or gender identity.  It is also wrongheaded to implicitly assume—even if the child does–that parents upset about a child’s actions will harm the child.

Guidance for use of alternative names and pronouns notes that a student  may have “safety concerns or fear of rejection” about revealing his or her transgender and/or gender nonconforming identity to  family.  There soon follows the reminder about Utah’s mandatory reporting of child abuse, should the student raise legitimate safety concerns. As  one parent noted, “So If I don’t agree to call my child by an alternate name or pronoun, I’ll be reported to DCFS?”

The Board asks for public comment on the draft (https://www.schools.utah.gov/file/a1b2aeb9-212d-4f5b-8419-bcfc97beafac) via a survey in which readers can agree/disagree about the inclusion of each section, and then give “feedback or suggestions on the language” for each section—though the draft language doesn’t appear on the same screen as the comment box. The survey’s format lets the public suggest verbiage, but does not invite genuine input on the substance of a document that will significantly impact Utah’s children, parents, and educators for years to come.

The survey closes today, and the feedback will be considered at a committee meeting February 23. However, the Board plans to offer additional opportunities for public engagement on this issue. As  the child’s primary guide in matters related to sex and gender, many parents will want to accept that invitation to participate in shaping guidance for Utah schools.