Issues Surrounding Student Preferred Names

By Attorneys Robert Burns and Abby Tilkens, Davis & Kuelthau, s.c.

School administrators are constantly answering questions relating to COVID-19, face masks and quarantine.  Outside of the COVID spectrum, however, another timely issue is on the rise.  Students are advocating for themselves and requesting preferred names and pronouns within the school setting.  Districts are receiving requests such as a nickname, a preferred name of the opposite gender identity, or pronouns that better define the student.  The questions of parental involvement or consent as to such changes also enters the picture.  Wisconsin school administrators are seeking assistance with such requests because, at this time, federal and state laws do not provide many answers.  

There are no regulations under the Family Educational Rights and Privacy Act (“FERPA”) guiding districts in answering requests for preferred names.  FERPA’s guidance addresses official name changes, requiring documentation supporting the name change.  FERPA requires that educational institutions allow parents or eligible students to review education records, and to request that the school amend records that they believe are “inaccurate” or “misleading” or otherwise in violation of the student’s privacy rights.   FERPA does not preclude schools from otherwise sharing the minor student’s gender identity, transgender status, or preferred name with the parents.  If a student’s transgender status is included in his or her education records, parents of minor students have a right to see that information.   

Similarly, there is little guidance at the state level.  Generally, states require school districts to maintain a “permanent” record for a student that matches his/her legal name and gender, as indicated on a legal document, such as a birth certificate.  Districts will modify a student’s legal name in its records if provided official documentation to support the change.  Every-day records, including class rosters, student ID and test documents, may reflect a student’s preferred name/gender.  Some states simply require a request from a student or his/her family to change a student’s preferred name.   In practice, school staff frequently allow nicknames in the classroom to honor a student’s preference, such as changing “Abigail” to “Abby”, without a need for documentation.  More recently, students requesting a different preferred name arising from their gender identity has raised the issue of parental consent, enforceability and what, if any, notification obligations might exist for the District.    

Some districts are considering drafting, or have already drafted, policies addressing their stance on preferred names and protocols for its staff to follow.  In 2018, the Madison Metropolitan School District instituted policy guidance requiring parental consent before students change their name and gender in official district records.  However, the guidance allowed students to pick and use new names and pronouns in the day-to-day school setting regardless of whether the students had parental consent via the following language: “Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in MMSD systems.”

The district guidance further advised that “a student’s name and gender may be changed in District systems with a parent’s or guardian’s permission,” but “students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in MMSD systems.” 

A group of anonymous parents challenged the policy guidance and filed a lawsuit.  On September 29, 2020, a Dane County Circuit Court Judge issued an injunction against MMSD’s policy.  The Judge partially granted the parents’ motion for injunctive relief stating: