WA schools superintendent responds to new 'Parents' Bill of Rights'

The Washington State Superintendent of the Office of Public Instruction is weighing in on the ‘Parents’ Bill of Rights' that was signed into law earlier this year. Critics say the measure is a "forced outing" of students who aren't ready to tell their parents that they're queer or transgender. 

Known as Initiative 2081, the law requires schools to notify parents in advance of medical services offered to their child, except in emergencies, and of medical treatment arranged by the school resulting in follow-up care beyond normal hours. It grants parents the right to review their child's medical and counseling records and expands cases where parents can opt their child out of sex education.

That could jeopardize students who go to school clinics seeking access to birth control, referrals for reproductive services, counseling related to their gender identity or sexual orientation, or treatment or support for sexual assault or domestic violence without their parents knowing, critics say.

The initiative states that parents and legal guardians have the right to inspect their child’s public school records, a right that is already outlined in existing law. However, the initiative defines what constitutes as a "record," to include items such as medical or health records; records of any mental health counseling; and any other student-specific files, documents, or other materials maintained by the school.

Some of these records contain personal information and are protected under the Federal Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA), and as such, cannot be disclosed without the student’s consent.

OSPI's website said the initiative overlaps or mirrors existing law in many places, and some provisions conflict with current law––particularly around students’ right to privacy in school.

"I want to be clear: This initiative did not change, reduce, or diminish student privacy rights in Washington schools that are protected by federal law," said State Superintendent Chris Reykdal.

"There is no question that students are best supported when their families are actively involved in their education," Reykdal continued. "But if a student does not feel safe coming out to their family and they turn to a trusted adult at their school for support, they have a right to receive that support without fear of being outed by their school."

FERPA does not require the disclosure of any information related to a student’s gender status outside of a specific request to review and inspect records. Further, FERPA does not compel a school to share information that a school official obtains through personal knowledge or observation––and not from an education record––unless the school official uses the information in a manner that produces an education record.

"In Washington state, we recognize that LGBTQ+ youth often face barriers and challenges at higher rates than their peers, and we have worked hard to create learning environments where all students feel welcomed and included," Reykdal said. "However, we are seeing a disturbing trend of some policymakers implementing state and local policies that aim to undo these protections."

"Our state’s guidance has maintained that, in order to protect student privacy and safety, schools should communicate with students who disclose they are transgender or gender expansive about the student’s individual needs, preferences, and safety concerns," Reykdal continued. "It is the student’s decision when and if their gender identity is shared, and with whom."

On May 23, the ACLU of Washington, Legal Voice, and QLaw filed a lawsuit on behalf of 10 nonprofit organizations to prevent the initiative from taking effect because the initiative contradicts existing federal and state laws.

On June 21, the King County Superior Court will consider a preliminary injunction.

Anyone who believes a student is experiencing discrimination or discriminatory harassment based on gender expression or gender identity may file a formal complaint with their school district or charter school.