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:

Defendant Madison Metropolitan School District is hereby enjoined, pending Plaintiff’s appeal, from applying or enforcing any policy, guideline or practice reflected or recommended in its document entitled “Guidance & Policies to Support Transgender, Non-Binary & Gender-Expansive Students” in any manner that allows or requires District staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school, including information about the name and pronouns being used to address their children at school.  This injunction does not create an affirmative obligation to disclose information if that obligation does not already exist at law and shall not require or allow District staff to disclose any information that they are otherwise prohibited from disclosing to parents by any state or federal law or regulation. (Doe 1, et al. v. MMSD, Case No. 20-cv-454, Dane County Circuit Court; September 28, 2020.)  

The Dane County case and related issues discussed by legal commentators highlight the need for districts to strike a delicate balance between student privacy and parental communication with school officials.  Some students may not be ready to discuss his/her preferred name with their parents and may first begin that dialogue with trusted staff within the school.  The Dane County Circuit Court injunction quoted above reflects the position that district staff cannot conceal information or untruthfully respond to any questions that parents ask about their child at school.  At the same time, however, that Court did not create an affirmative obligation to disclose information.  The Dane County decision currently applies only to the parties in that case and is not statewide authority.  (A more recent appellate decision arising from that case issued July 22, 2021, dealt only with the question of whether the parents could proceed in the suit anonymously, and a petition for review of only that issue is pending in the Wisconsin Supreme Court.  Thus, it will be quite some time before the central issue of disclosure of student gender identity to parents is decided.)  

It is possible other courts in other cases might focus more on protecting student privacy interests when discussing transgender status with parents.  Some guidance recommends that school officials and students meet first to address any concerns the student may have when disclosing this information to his/her parents.  Those fears may involve a religious belief of the parents in conflict with the student’s status, potential child abuse or neglect as a response to the student’s status or a general lack of parental support. 

However, a student’s age and developmental stage complicates this issue further.  In the case of young students such as those in elementary grades or students with developmental disability, school officials may need more latitude to be able to communicate with the child’s parents, unless there is a reason to fear for the safety of the child.  On the flip side, those older students wishing to keep their preferred name private from parents should have a discussion with school officials to determine next steps if they fear repercussions at home.  

Another issue that might arise is the possibility that a school might be viewed as creating a double standard if name switches between “Joseph/Julie” and “Abigail/Abby” are not treated similarly.  The former name change reflects a different gender identity, while the latter is likely a nickname option.  If such situations are treated differently, the argument may be made that the student is being discriminated against based on gender identity.  The Department of Education Office for Civil Rights has reaffirmed that Title IX protects against discrimination based on sexual orientation and gender identity. 

Because there is no current state or federal law (nor a court decision of statewide application) which controls how districts must handle this issue, districts will likely vary in their responses.  It is recommended that administrators anticipate such issues and develop internally consistent approaches to such scenarios in advance of an actual student/parent issue arising.  Given the uncertainty surrounding this area, stay tuned for additional guidance, as it is likely more courts throughout the state and country will review these novel questions.

*This article was written by Attorneys Robert W. Burns and Abby S. (Busler) Tilkens of Davis & Kuelthau, s.c. The views expressed herein are exclusively those of Mr. Burns and Ms. Tilkens. This article was designed to provide general authoritative information and commentary as a service to AWSA members. It should not be relied upon as legal advice. The materials and information provided in this article are subject to change without notice and should not be construed as legal advice.  If needed, legal advice regarding any topic, issue, situation or incident should be obtained from the school district's legal counsel. You may also direct your Level I legal questions to AWSA’s retained legal counsel, Malina Piontek, at 608-497-3037 or [email protected]