By: Richard L. Smith
Attorney General Matthew J. Platkin announced today the filing of Division on Civil Rights (DCR) complaints challenging allegedly unlawful policies enacted this week by the Middletown Township, Marlboro Township, and Manalapan-Englishtown Regional Boards of Education.
The policies enacted by these three Boards of Education require school staff in these school systems to notify parents of the gender identity or expression of transgender, gender non-conforming, and gender non-binary students.
Attorney General Platkin and DCR have also filed emergency motions in Superior Court, requesting preliminary injunctions and temporary restraints to prevent all three of the policies from going into effect while DCR’s challenges to the policies remain pending.
The administrative complaints and the motions for preliminary injunctions allege that all three of the policies violate the New Jersey Law Against Discrimination’s (LAD) prohibition against discrimination on the basis of gender identity or expression.
As the complaints assert, the policies enacted by the Middletown, Marlboro, and Manalapan-Englishtown Boards expressly target transgender, gender non-conforming, and gender non-binary students by singling them out for differential treatment, requiring parental notification for those students but not their peers.
The complaints also assert that the parental notification policies have disparate impacts on transgender, gender non-conforming, and non-binary youth: By imposing a requirement that school staff must “out” these students to their parents, the policies expose these students to the potential for severe harms to their safety and mental health.
The policies also disregard and contradict guidance from the New Jersey Department of Education concerning the confidentiality and privacy of such information.
“In New Jersey, we will not tolerate any action by schools that threatens the health and safety of our young people. Without question, the discriminatory policies passed by these Boards of Education, if allowed to go into effect, will harm our kids and pose severe risk to their safety,” said Attorney General Platkin.
“Simply put, these policies violate our laws, and we will not relent in protecting our LGBTQ+ community—especially our children—from discrimination.”
In addition to filing administrative civil rights complaints, DCR is seeking temporary restraints and preliminary injunctions from the Superior Court to prohibit the Boards from implementing the policies while the administrative complaints are being adjudicated by DCR.
As the briefs in support of the State’s motion explain, the requested injunctions from the court would preserve the status quo during the litigation and thereby ensure that school officials are not forced to “out” transgender, gender non-conforming, and non-binary students to their parents while the administrative complaints are pending.
The requested injunctions would not prevent school staff from notifying parents about concerns unrelated to LAD-protected characteristics, nor would they prevent school staff from complying with Harassment, Intimidation, and Bullying (HIB) policies, or other similar reporting requirements designed to protect students’ safety.
“School policies that single out or target LGBTQ+ youth fly in the face of our State’s longstanding commitment to equality,” said Sundeep Iyer, Director of the Division on Civil Rights. “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.”
The policies challenged today were all enacted on Tuesday, June 20. The policy enacted by the Marlboro Board of Education provides that the school district is required to notify parents or guardians of any student’s “change in gender identity or expression.”
It also eliminates the requirement under prior Marlboro policy that the school address students by their preferred name and pronoun; the new policy now permits the district to deviate from a student’s preferred name and pronoun when “a parent/guardian of a minor student disagrees with the student regarding the name and/or pronoun to be used at school.”
The new policy similarly eliminates the requirement under prior Marlboro policy that all students are entitled to access school facilities in accordance with their gender identity.
Meanwhile, the policy enacted by the Middletown Board of Education provides that where a student “requests a public social transition accommodation,” such as a name or pronoun change, a bathroom or locker room accommodation, or club or sports accommodation, the school is obligated to “notify a student’s parents or guardian” of the student’s “asserted gender identity.”
The policy enacted by the Manalapan-Englishtown Regional Board of Education likewise provides that where a student “requests a public social transition accommodation,” the school must “notify a student’s parents or guardian of the student’s asserted gender identity.”
It also states that for “students in grades Pre-K through 5,” the “responsibility for determining a student’s gender identity rests with the student’s parents/guardians” rather than with the student.
The enforcement actions announced today follow on the heels of a civil rights complaint and application for temporary restraints filed by Attorney General Platkin and DCR challenging a Hanover Township Board of Education policy that likewise required school staff to out LGBTQ+ students to their parents. The litigation challenging that policy remains pending.
The Superior Court, however, has temporarily restrained the Hanover Township Board of Education and the school district from enforcing that policy while it considers the matter.
DCR is the state agency responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places of public accommodation (e.g., places open to the public like schools, businesses, hospitals, etc.).
DCR enforces the New Jersey Law Against Discrimination (LAD), the New Jersey Family Leave Act (FLA), and the Fair Chance in Housing Act (FCHA).