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Transgender issues in schools and the workplace: Personal records
The rights of transgender individuals and the application of those rights in the absence of specific laws leave schools and employers in unfamiliar territory on myriad issues. This article looks at just one: the management of records with sensitive information regarding an individual’s gender transition.
The School Dilemma
Schools generate and maintain many records that could identify a student as transgender, such as birth certificates, rosters for activities separated by gender (for example, sports teams), enrollment forms, and even gender support plans. As a starting place, it is important for attorneys practicing in this area to understand what information contained in records may be sensitive. The term “transgender” encompasses multiple concepts, but has been broadly defined as an individual who “has a gender identity (one’s internal sense of gender) that is different from the individual’s assigned sex (i.e. the gender designation listed on one’s original birth certificate).”1 Transition is known as “the process through which transgender people begin to live as the gender with which they identify, rather than the one typically associated with their sex assigned at birth.”2 “A gender transition often includes a ‘social transition,’ during which an individual begins to live and identify as the sex consistent with the individual’s gender identity, with or without certain medical treatments or procedures.”3 Accordingly, records that include any identification of an individual’s gender, a name change, or other indications of a social transition are important in this context.
Consider 12-year-old Samantha: Samantha’s birth certificate identifies her as female, and Samantha identifies as a male. Samantha wants to transition as a male and meets with the school social worker to talk about the transition process. She shares her plans to transition and has several requests for her transition: Samantha wishes to be referred to with male pronouns and to be addressed as “Sam” by classmates and faculty. Sam does not want his former name to appear in his classroom or elsewhere in school. Sam has not told his parents of his transition and does not want to tell them.
Sam is essentially requesting that the school change his student records to reflect his gender identity. This request implicates laws including the Family Educational Rights and Privacy Act (“FERPA”) and the Illinois School Student Records Act (“ISSRA”). Sam’s conversation itself with the social worker may be considered confidential as Section 5 of ISSRA provides that “[n]othing contained in this Act shall be construed to impair or limit the confidentiality of communications otherwise protected by law as privileged or confidential, including but not limited to, information communicated in confidence to…a school social worker or school counselor…”4 However, Sam’s transition plan in school, specifically his requests to be referred to as Sam, to have his name changed on school documents, and to be referred to using male pronouns raise the issue of whether the school needs the consent of Sam’s parents to make the requested changes.
Parental involvement maybe required because Sam’s request involves a change to his school records. ISSRA gives parents the right to both access and challenge their child’s student records: “Parents shall have the right to challenge the accuracy, relevance, or propriety of any entry in the school student records …”5 ISSRA broadly defines student records as, “Any writing or other recorded information concerning a student and by and which a student may be individually identified, maintained by a school or at its discretion or by an employee of a school, regardless of how or where the information is stored.6 (Emphasis added). Accordingly, any documentation of Sam’s requested name and pronoun change or document reflecting the name and pronoun change are records that may be accessed and challenged by Sam’s parents.
Gender Identification through School Records
Consider a second situation: Sam starts at a new middle school already having transitioned. His family has not informed the new school of the gender transition, instead enrolling him using the identified male gender and his preferred name, Sam. The family is reluctant to give the school a copy of Sam’s birth certificate. Sam will be known only as Sam at this new school, and if the birth certificate (which identifies Sam as female) is shared or exposed, they fear backlash and potential violence against Sam. Sam’s parents contest giving the original birth certificate.
Some state laws, including two in Illinois, require that parents or guardians enrolling students in a school for the first time provide a certified copy of a student’s birth certificate. The Missing Children’s Records Act and the Missing Children’s Registration Law require parents to provide a certified copy of a birth certificate or “other reliable proof as determined by the Department [of State Police] of the student’s identity and age, and an affidavit explaining the inability to produce a copy of the birth certificate.”7
The purpose of these laws is not to identify students as transgender, but rather to alert law enforcement to the presence of potentially missing children. Nonetheless, the discrepancy between a student’s birth certificate and enrollment information will identify the student as transgender in school records. In the scenario described with Sam, the school must require the birth certificate or affidavit.
The challenges of maintaining the confidentiality of a student’s gender transition go beyond the birth certificate. ISSRA allow schools to routinely share gender information with the public.8 Schools may designate student gender as “directory information,” meaning the student’s gender may be released to the public. Schools may routinely share gender information publically, for example, by posting “girls” and “boys” rosters for activities. Parents or their legal counsel who seek to protect a child’s gender identity must affirmatively request that gender information not be released by the school. To honor such requests, schools will need to take steps to broadly consider what public information the school releases that may identify a student’s gender.
Student records are not only an issue when the student attends school: a student’s name and gender are included on the student’s permanent record, which the school district must maintain for 60 years after the student leaves school. Individuals and lawyers assisting them may seek to align all of an individual’s official records with a change in gender identity by requesting a change to their permanent school record. Currently, there are no legal standards governing the criteria a school district should use to process such a gender change request.
Records in the Workplace: Navigating through the Evolving Law
Illinois is one of 17 states to explicitly include gender identity under its state anti-discrimination laws.9 While Illinois law specifically protects transgender individuals from discrimination in the workplace, it is unclear what practical implications this has for record maintenance.
The Workplace Dilemma
The Illinois Human Rights Act (“IHRA”) provides “freedom from discrimination against any individual because of his or her race, color, religion, sex, age…sexual orientation…in connection with employment, real estate transactions, access to financial credit, and the availability of public transactions.”10 (Emphasis added). Sexual orientation, as defined in the IHRA, includes “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”11
Consider employee Samantha: Samantha’s birth certificate identifies her as female, and Samantha identifies as a male. Samantha wishes to transition at his job. He requests to be referred to as Sam by the employer and employees. He requests to change his personnel records to reflect his changed name and gender and to have his paychecks reflect his new name. Sam has not made any formal changes to his personal identification documents (including his state ID, driver’s license, or birth certificate). Sam’s employer wants to maintain legally compliant personnel records.
At present, there is no law directly applicable to situations like the one presented by Sam’s request. The Illinois Personnel Record Review Act (“IPRRA”), which provides for access, review and production of employee records, does contain a general provision allowing for the correction of personnel records by an employee. IPRRA’s Section 6 states, “If the employee disagrees with any information contained in the personnel record, a removal or correction of that information may be mutually agreed upon by the employer and the employee.”12
The IPRRA does not require an employer to make all requested changes to personnel records. If the employer does not agree with a requested change, then Section 6 of IPRRA provides that the employee may submit a written statement explaining the employee’s position and the employer must then attach the employee’s statement to the disputed portion of the personnel record. The IPRRA process is not well suited to this dispute, as any statement of disagreement attached to a personnel record would only serve to highlight the individual’s transgender status.
However, the IPRRA is not the only legal consideration. Advocates for transgender individuals have successfully argued that current laws provide a right to privacy that applies to an individual’s transgender status. For example, in Love v. Johnson, the United States District Court in the Eastern District of Michigan recently found that requiring an individual to disclose her transgender status implicates a constitutional right to privacy.13 The court based its decision, in part, on its determination that disclosure of one’s transgender status “creates a very real threat to Plaintiffs’ personal security and bodily integrity.”14 It is unclear whether this logic could support a discrimination claim under the IHRA or other anti-discrimination laws.
Evolving Issue
Even when looking only at the single issue of records management for transgender individuals, the law is highly complex and evolving. This leaves all parties and their legal representatives to make practical decisions balancing not only the current state of the law, but also where the law may go in the weeks, months and years to come.