December 1, 2022

The Maryland State Department of Education has taken the position that a child’s choice to be gender non-conforming or transgender is a privacy matter and has published guidelines that disclosure of gender choice to other people, including parents, is not required. FCPS has adopted these guidelines as part of policy 443 and its corresponding regulation 400-36. 

Below is a summary of the state’s guidelines and the FCPS policy that guides their actions. It includes some clarifications on what a parent is entitled to know and why FCPS is not obligated to keep information from parents.

The Maryland State Department of Education Guidelines

Under MSDE Guidelines for Maryland schools, school districts are encouraged, but not required, to keep a child’s gender choices private and to not disclose them to others, including parents. The guidelines state, “No provision of state or federal law requires schools to affirmatively disclose this sensitive information to parents.” This means schools are not required to disclose information to parents but also makes no mention of laws that prohibit them from doing so. The guidelines go on to ask school districts to “Implement training and practices that assist school staff and prevent accidental disclosure of information that may reveal a student’s transgender status to others, including parents.”

There is no obligation for school districts to comply with the above guidelines. The MSDE prefaces the above guidance by stating, “In considering the creation or development of a local transgender policy, school system administrators may want to review and consider these guidelines.” Districts can choose to maintain privacy but bring parents into the process. FCPS, so far, has chosen not to do so.

In addition, the HIPAA privacy rule, which exists to protect individual health information, does not apply to schools. MSDE seems to imply that it does.

FCPS Policy 443 and its corresponding Regulation.

Before reading about the policy you may wish to hear directly from two parents whose children have been affected by policy 443 and the increasing integration of gender identity into FCPS. To hear their story click here.

Policy 443, Creating a Welcoming and Affirming for Transgender and Gender Non-Conforming Students, defines its purpose as preventing discrimination, harassment, and bullying of students who are transgender. The policy recognizes the right of every student to be referred to by their preferred name and pronoun and requires all staff that works with students to maintain a list of preferred names and pronouns and use them in every interaction. 

The policy also states, “Depending on privacy needs or a transgender student’s own personal transition, school staff are authorized to work with students (and their families if a student explicitly wishes) to provide options that may support a student’s needs.”

The policy’s confidentiality section states, “The fact that a student may wish to use a different name or pronoun at school, or to disclose their transgender or gender nonconforming status to school staff, does not authorize school staff to disclose a student’s personally identifiable or medical information. FCPS will ensure all personally identifiable and medical information relating to transgender and gender nonconforming students will be kept confidential according to applicable federal, state, and local privacy and student records laws.”

Here is some clarification since the policy can use some vague terms. The fact that a child chooses a different pronoun or chooses a nonconforming gender does not fall under “personal identifiable” information. Under Maryland Law, any parent in good standing can access a minor’s medical record. FCPS is under no legal obligation to protect a minor child’s medical condition unless the disclosure can cause a risk of serious harm to the student, and schools are not covered entities under HIPAA privacy laws. In short, FCPS should have the discretion to disclose gender choice information to parents, and parents in good standing (legally) can obtain the child’s medical records.

Parents need to be aware and get involved in supporting policy changes relative to gender identity and the exclusion of parents from this critical period of development for their children. If you are interested in participating in policy change and/or signing a petition, please contact Transparency in Education via [email protected].