A conservative law firm is calling on New Jersey officials to repeal state guidance on parental notification when students question or attempt to change their gender at school.
The Liberty Justice Center, a Texas-based nonprofit that has waged such battles for free around the country, warned New Jersey Attorney General Jen Davenport in a letter Tuesday that keeping the guidance, known as Policy 5756, in place will lead to “federal investigations or lawsuits for the violation of federal civil rights.”
The center also sent letters to attorneys general in New York, Illinois, and Washington, where similar policies are in place. The effort comes a week after the Trump administration threatened two school districts in Maryland and Michigan with sanctions, including pulling their federal funding, if they don’t repeal their policies.
“By withholding information from parents regarding their children, these school districts are violating federal law, not to mention basic morality,” Timothy Snowball, a senior attorney at the center, said in a statement. “Parents have the fundamental right to direct their children’s upbringing, and these attorneys general must comply with federal law or face possible legal action.”
New Jersey’s policy, which the state Department of Education issued in 2018, prohibits the disclosure of a student’s gender identity without their consent unless “a specific and compelling need” obligates school officials to alert parents, such as health and safety concerns or a bias incident.
Several school districts and parents have challenged the policy in court, arguing it interferes with parents’ constitutional right to raise their children as they want. The state’s attorneys have countered that students have a constitutional right to privacy, disclosure risks harm to students whose parents aren’t supportive, and the policy is voluntary guidance districts don’t have to follow. Judges so far have let it stand.
It’s unclear how many of the state’s 600 districts have adopted the state guidance. The group Defending Education, which opposes such policies, estimates 130 districts have done so, but local advocates suspect that’s an undercount, as school boards typically act on state guidance.
Snowball said the U.S. Supreme Court’s March order in a California case known as Mirabelli v. Bonta should spur states with similar policies to reexamine and revoke them.
California’s law requires schools to support a child’s social transitioning and bars alerting parents without the child’s consent. After it was challenged, a trial court issued an injunction that blocked enforcement of the law, an appeals court stayed that injunction, and a split Supreme Court vacated the stay and returned the case to circuit court, saying parents claiming religious exemptions likely will prevail.
The Liberty Justice Center filed a brief supporting parents in the California case.
“The constitutional questions have now been squarely presented, and the legal issues are no longer theoretical. Your office should reevaluate the state’s current position to ensure that New Jersey’s policies and enforcement actions comply with parents’ federally protected rights before further litigation compels that result,” Snowball wrote to Davenport.
Spokespeople for Davenport and the New Jersey Department of Education did not respond to requests for comment.
But Robert Kim, executive director of the Education Law Center, said Davenport and the other attorneys general shouldn’t change course because of the California decision, which was not a final ruling on the case’s merits but instead just a preliminary order issued in response to an emergency application — meaning there were no oral arguments, briefs filed, or extended opinion written.
“It is a very limited window into this emerging area of law,” Kim said.
The Liberty Justice Center’s letter-writing campaign adds “fuel to the fire that’s stemming from this pattern of disturbing behavior by the Trump administration, this fixation to aggressively target a small portion of the student population, the transgender community, for disfavored treatment by the federal government,” Kim said.
Michael Gottesman, founder of the New Jersey Public Education Coalition, also doesn’t think the California decision should sway policymakers here, noting that California’s policy is mandatory while New Jersey’s is voluntary.
The policy’s critics also ignore that the state’s Law Against Discrimination protects people from being forcibly outed, Gottesman added.
“The policy basically sets up a process which recognizes the fact that parents have rights, but students do too,” Gottesman said. “There’s a whole line of cases in the Supreme Court on parents’ rights, but there’s also a whole line of cases in the Supreme Court about students’ privacy rights.”
Opponents have mischaracterized the policy, which balances parental notification with student privacy, said Dillon Reisman, a staff attorney with the American Civil Liberties Union of New Jersey.
“Our state’s policies have never required schools to lie to parents when a parent asks about their student’s gender identity. The policy already recognizes that health and safety concerns or harassment, intimidation, and bullying laws might require schools to affirmatively notify parents of a student’s gender identity if it’s relevant,” Reisman said. “Those are two things that already meet the U.S. Supreme Court standard from Mirabelli v. Bonta.”
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