Transgender Policy 5756- Fact vs. Fiction

Do not trust the guidance from Strauss Esmay

Many school boards have adopted the New Jersey Department of Education's 2018 Transgender Guidance for School Districts, which provides guidance for the policy on the treatment of transgender students in public schools. This is often policy number 5756 in school districts. Recently, parents of Lawrence Township questioned this policy and were told that this is an NJ law and that it is mandated.

Well, that was a lie.

History of the Policy

In 2017, Chris Christie signed legislation that required the state Department of Education to provide GUIDANCE to schools about policies involving transgender students. In 2018, Phil Murphy's appointed Commissioner of Education released that guidance.  

As stated in the linked article, these guidelines are intended to assist school districts in developing their own policies.

The actual law does not mandate a District to do anything. The law requires the Commissioner of Education to develop guidelines. That’s it.

So What Happened?

This policy guidance was released in 2018, so why are so many districts throughout the state suddenly adopting this policy 4 years later?

Here’s our best guess:

There is a policy writing service, Strauss Esmay, that provides policy updates to Districts. According to their website, over 560 Districts in NJ use them to write their policies.

That is pretty much every District.

This year, Strauss Esmay put out policy 5756 (based on the NJDOE's 2018 policy guidance) and marked it as (M) or MANDATORY. Most Districts, without question, adopted this policy VERBATIM.

The Policy

The policy, as written in the guidance:

• Directs staff not to disclose student name changes to parents

• Advises school districts to consult their attorney if parents disagree when they find out

• Directs staff to create two files for students, keeping one confidential

• Directs staff not to inform parents if their child is receiving mental health counseling  

• References child protective services as a resource

•  Directs districts to allow boys to compete in girls’ sports

•  Directs districts to allow access to restrooms and locker rooms based on gender identity

Based on this K-12 policy, a school could have a student as young as 5 change their gender while their parents have no idea. 

This policy does not require substantiation of child abuse or neglect to hide a student’s new gender without parental knowledge or consent.

As a result of this policy, biological males are erasing biological females’ achievements in sports.

Why is it marked ‘M’ if it isn’t mandated by law?

This is where you get into a grey area. Board attorneys will advise it is best to adopt this guidance as written to avoid the potential for a discrimination lawsuit from a transgender student. They also might advise that the confidentiality of the gender change is critical to ensure student safety in a hostile home life.

What is NOT being considered is the other side of the argument. We know that the suicide rate for transgender youth is astounding. A recent study claimed 82% have considered suicide with 40% actually making attempts.

If a student is struggling mentally, and the school is aware but a parent is not notified, could the District be found liable for damages if the student were to harm themselves?

Also, is there a possibility for non-trans students to file lawsuits against a District for discrimination in sports or facilities usage?

For either of these scenarios, we don’t know how a court would rule as there isn’t much legal precedent established yet. We are in uncharted territory.

The Bottom Line

The truth is that there is no legal authority that requires a district to adopt the 2018 NJDOE Transgender Guidance For School Districts (often titled Policy 5756 in districts) as written. A district is free to develop its own policy on this issue.

Here’s proof that NJ schools are hiding students’ new names and pronouns from parents.

Make sure your Board is getting accurate legal guidance from the Board attorney.

We would also recommend dropping Strauss Esmay. Last year, they inaccurately advised that it was MANDATORY to quarantine healthy children ‘exposed’ to Covid when there was no legal authority for this either. This turned out to be misleading and Middletown was the first District last year to successfully challenge it.

Every board might want to consider switching to the NJSBA’s policy writing services which are included in your board’s NJSBA membership. However, be careful; the NJSBA helped write the 2018 Transgender Student Guidance for School Districts.

The moral of this story is, do your homework. When something is labeled as ‘guidance’, it usually is.