Text of NJ A 4109 (2022)

ASSEMBLY, No. 4109 STATE OF NEW JERSEY 220th LEGISLATURE INTRODUCED JUNE 2, 2022 Sponsored by: Assemblywoman MILA M. JASEY District 27 (Essex and Morris) Assemblywoman VERLINA REYNOLDS-JACKSON District 15 (Hunterdon and Mercer) SYNOPSIS Requires school districts to adopt policies concerning needs of transgender students. CURRENT VERSION OF TEXT As introduced. An Act concerning the needs of transgender students in public schools, supplementing chapter 36 of Title 18A of the New Jersey Statutes, and repealing section 1 of P.L.2017, c.137. Be It Enacted by the Senate and General Assembly of the State of New Jersey: 1. The Legislature finds and declares that: a. The "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) generally makes it unlawful for schools to subject individuals to differential treatment based on race, creed, color, national origin, ancestry, marital status, domestic partnership or civil union status, sex, affectional or sexual orientation, gender identity or expression, disability or nationality. b. Title IX of the Education Amendments of 1972 (20 U.S.C. s.1681) specifically prohibits discrimination on the basis of sex in federally-funded education programs and activities. c. Section 1 of P.L.2017, c.137 (C.18A:36-41) directs the Commissioner of Education to establish guidelines to provide direction for schools in addressing common issues concerning the needs of transgender students, and to assist schools in establishing policies and procedures that ensure a supportive and nondiscriminatory environment for transgender students. d. Accordingly, this guidance was prepared by the Department of Education after a review of policies and guidance from other states and organizations, and in consultation with educators, counselors, school psychologists, advocates, and parents. The intended purpose of this guidance is to help school and district administrators take steps to create an inclusive environment in which transgender and gender nonconforming students feel safe and supported, and to ensure that each school provides equal educational opportunities for all students, in compliance with N.J.A.C.6A:7-1.1 et seq. e. Communication with the student is paramount. Under the guidance established by the commissioner, schools and school districts are encouraged to communicate openly, albeit confidentially, with students regarding their transgender status or gender identity. Proper communication with the student will ensure that appropriate steps are taken to determine a student's preferences and address potential privacy concerns and associated risks to the student's well-being. f. It is altogether fitting and proper to protect transgender and gender nonconforming students by establishing a requirement that school districts adopt policies and procedures that proactively accept, recognize, and respect a student's asserted gender identity. 2. As used in this act: "Gender expression" means external manifestations of gender, expressed through a person's name, pronouns, clothing, haircut, behavior, voice, or body characteristics. "Gender identity" means a person's internal, deeply held sense of gender. "Gender nonconforming" means a person whose gender expression does not conform to the gender expectations of their family or community. "LGBTQ" means lesbian, gay, bisexual, transgender, and queer or questioning. "Transgender" means a person whose gender identity or gender expression differs from those typically associated with the sex and gender assigned at birth. "Transition" means the process by which a transgender person recognizes that their authentic gender identity is not the same as the gender assigned at birth, and develops a more affirming gender expression that feels authentic. 3. Notwithstanding any law, rule, or regulation to the contrary, each school district in the State shall adopt policies and procedures to implement the provisions of this act. 4. a. A school district shall accept, recognize, and respect a student's asserted gender identity without requiring: (1) parental consent; (2) any threshold diagnosis or treatment requirements; or (3) a legal or court-ordered name change. There shall be no affirmative duty for any school district personnel to notify a student's parent or guardian of the student's gender identity or expression. b. In the event that a parent or guardian of a minor student disagrees with the student regarding the name or pronoun to be used at school and in the student's education records, a school district shall consult its board attorney regarding the minor student's civil rights and protections under the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.). All school personnel and staff shall continue to refer to the student in accordance with the student's chosen name and pronoun at school and appropriate school personnel may consider providing resource information regarding family counseling and support services outside of the school district. c. School districts shall anticipate and be prepared for disputes between a minor student and the student's parents and guardians concerning the student's gender identity or expression and shall prominently display on their websites in easily accessible locations resources available through advocacy groups and resources from the Department of Children and Families and the Department of Education's "Child Abuse, Neglect, and Missing Children" webpage. d. School district personnel shall have an open, but confidential, discussion with the student to ascertain the student's preference on matters such as chosen name, chosen pronoun to use, and parental communications in order to ensure a safe and supportive environment for transgender students. The purpose of the discussion shall be to: (1) ensure that a transgender student is addressed at school by the name and pronoun chosen by the student, regardless of whether a legal name change or change in official school records has occurred; (2) issue school documentation for a transgender student, such as student identification cards, in the name chosen by the student; and (3) allow the transgender student to dress in accordance with the student's gender identity. e. A school district shall discuss with the student, and any other individuals at the student's request, the risks associated with the student's transgender status being inadvertently disclosed, including a discussion that the transgender status may be revealed due to other students' discussions at home. The school district shall work with the transgender student to ensure awareness of activities and events that may inadvertently disclose the transgender student's status. 5. a. Each school district shall adopt policies and procedures to ensure that its schools provide a safe and supportive learning environment that is free from discrimination and harassment for transgender students, including students going through a gender transition. School districts shall review and update their existing policies and procedures, including those regarding classroom activities, school ceremonies, school photographs, and dress codes, to verify that transgender students are not excluded. b. To establish and maintain a nondiscriminatory environment for all students, including transgender and transitioning students, school districts shall: (1) comply with section 3 of P.L.2002, c.83 (C.18A:37-15) and N.J.A.C.6A:16-7.7, which prohibit harassment, intimidation and bullying, and require that each district board of education develop, adopt, and implement a policy prohibiting harassment, intimidation, or bullying on school property, at a school-sponsored function or on a school bus. If harassment based on gender identity creates a hostile environment, the school shall take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects; (2) provide staff training on sensitivity and respect towards transgender students; (3) incorporate social and emotional learning concepts into school culture and curricula; (4) seek a variety of professionals, including school counselors and school psychologists, to provide emotional supports for all students who demonstrate a need. School districts shall ensure that school counselors and school psychologists are knowledgeable regarding issues and concerns relevant to transgender students, students facing other gender identity issues, or students who may be transitioning; (5) not enforce dress codes more strictly for transgender and gender nonconforming students than for other students; (6) honor and recognize a student's asserted gender identity, and shall not require any documentation or evidence in any form to support a student's asserted gender identity, including diagnosis, treatment, or legal name change; and (7) ensure nondiscrimination on the basis of gender identity by providing transgender students equal access to educational programs and activities. 6. a. A school district shall keep confidential a current, new, or prospective student's transgender status. The district shall work with the student to create an appropriate confidentiality plan regarding the student's transgender or transitioning status. The student's birth name shall be kept confidential by school and district staff. b. School district personnel and staff shall not disclose any information that reveals a student's transgender status except in instances related to a specific and compelling need, including the health and safety of a student or an incident of bias-related crime. In the event there exists a compelling need for disclosure, the school district shall inform the student that the school intends to disclose the student's transgender status for the student's protection and well-being. Prior to disclosure, the student shall be given the opportunity to personally disclose that information. School districts shall make every effort to ensure that any disclosure is made in a way that reduces or eliminates the risk of re-disclosure and protects the transgender student from further harassment. Those measures may include the facilitation of counseling for the student and the student's family to promote the family's acceptance and support of the student's transgender status. c. (1) Pursuant to P.L.2002, c.83 (C.18A:37-13 et seq.), a school district is obligated to develop a procedure to report, verbally and in writing, an act of harassment, intimidation, or bullying committed by an adult or youth against a student. In the event of such an investigation involving a transgender or transitioning student, the school district shall inform the student of the district's obligation to report the findings of the investigation, which permits the parents or guardians of the students who are parties to the investigation to receive information about the investigation in accordance with State and federal law and regulation. (2) School district officials shall take into account the circumstances of the incident, and the status of an involved student as transgender or transitioning, when providing notification to parents or guardians of all students involved in the reported harassment, intimidation, or bullying incident and when conveying the nature of the incident, including the actual or perceived protected category motivating the alleged offense, pursuant to N.J.A.C.6A:16-7.7(a)2viii(2). d. School districts shall make a concerted effort to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. School districts shall comply with all State and federal laws and regulations regarding the confidentiality of student records and student privacy, including the requirements set forth under the "Family Educational Rights and Privacy Act of 1974" (20 U.S.C. s.1232g). 7. a. A school district shall update student education records including, but not limited to, attendance records, transcripts, and Individualized Education Programs, with the student's chosen name and gender pronouns, consistent with the student's gender identity and expression, and not circulate records with the student's birth name, unless directed by the student. If a student has expressed a preference to be called by a name other than their birth name, the school district shall keep permanent student records containing the student's birth name in a separate, confidential file. The file shall only be shared with appropriate school staff after consultation with a student. A separate file containing records bearing the student's chosen name may also be kept. If the student has previously been known at school or in school records by a birth name, the principal shall direct school personnel to use the student's chosen name and not the student's birth name. b. Each school district shall report to the Department of Education through the NJ SMART Resources and Training website a student's name or gender based upon that student's chosen name and corresponding gender identity. c. If a school district changes a student's name or gender identity, it shall maintain locally a separate record reflecting the student's legal name and sex assigned at birth until receipt of documentation of a legal change of name or gender. 8. A school district shall allow all students to participate in any gender-segregated classes or athletic activities, including intramural and interscholastic athletics, in a manner consistent with their gender identity. The district shall: a. provide transgender students with the same opportunities to participate in physical education as other students in accordance with their gender identity; b. permit a transgender student to participate in gender-segregated school activities in accordance with the student's gender identity; c. permit and support the formation of student clubs or programs regarding issues related to LGBTQ youth; and d. offer support in the creation of peer-led educational groups. 9. a. A school district shall ensure that all students have access to restrooms, locker rooms, and changing facilities in accordance with their gender identity to allow for involvement in various school programs and activities. The school principal shall work with the student and staff to ensure that all parties are aware of facility policies and understand that the student may access the restroom, locker room, and changing facility that corresponds to the student's gender identity. b. A school district shall ensure that a student who reports to the district that the student is uncomfortable using a sex-segregated restroom are provided with a safe and adequate alternative, including a single, unisex restroom or the nurse's restroom. 10. Section 1 of P.L.2017, c.137 (C.18A:36-41) is repealed. 11. This act shall take effect immediately. STATEMENT This bill codifies into law the guidelines issued by the Department of Education concerning the needs of transgender students. Current law directs the Commissioner of Education to establish guidelines to provide direction for public schools in addressing common issues concerning the needs of transgender students, and to assist schools in establishing policies and procedures that ensure a supportive and nondiscriminatory environment for transgender students. Because this bill codifies those guidelines into law, this bill also repeals the section of current law requiring the commissioner to establish the guidelines. The guidelines were prepared by the department after a review of policies and guidance from other states and organizations, and in consultation with educators, counselors, school psychologists, advocates, and parents. The intended purpose of these guidelines is to help school and district administrators take steps to create an inclusive environment in which transgender and gender nonconforming students feel safe and supported, and to ensure that each public school provides equal educational opportunities for all students, in compliance with N.J.A.C.6A:7-1.1 et seq.