Teachers and school administrators in New York must call transgender students by their chosen name or pronoun, otherwise they risk violating state and federal discrimination laws, according to new guidance released by the state Education Department (SED) this week.

The department released new guidelines for schools about LGBTQ+ students' rights and how school staff should respond when a student identifies with a different gender than the one assigned to them at birth in wake of recent changes to state law and federal rulings around the issue.

SED officials received increased questions from school administrators and parents about grey areas in the state's existing guidelines, which prompted the department to draft changes. A 30-member advisory group, including legal, education and health experts and LGBTQ+ students, met regularly from March 2022 through this April to finalize the legal update for New York schools. 

"There were some areas in the old guidance that were ambiguous," said Kathleen DeCataldo, assistant commissioner of the State Education Department's Office of Student Support Services. "Where we could be as crystal clear as we could, we really wanted to do that."

DeCataldo on Wednesday said the legal update provides information to schools and is intended to combat the higher rate of bullying, drop out and suicide prevalence in LGBTQ+ youth. The department cites a national survey that shows at least 56% of LGBTQ+ students have experienced harassment based on their gender expression, and at least half have experienced a form of anti-LGBTQ discrimination at school.

"We wanted to make sure schools were aware of how critical their actions with regard to these students are," DeCataldo said. "...We really wanted to be very clear about the rights students have."

The state's original guidance was released in July 2015. New York was one of the first U.S. states to specify guidance related to discussions of gender and sexuality in schools. 

Under the updated guidelines, teachers, school administrators and staff cannot deny transgender students in New York access to school facilities, events, restrooms, changing or locker rooms. They cannot use a district's dress code to dictate how a transgender student expresses themselves, and must honor the students' identified gender or pronouns. 

"Calling them by the wrong pronouns, calling them by what they would refer to as their 'dead name'... those things are a violation," DeCataldo said.

School personnel should let the student, regardless of age, lead the conversation, she added.

State school staff are advised to avoid, or eliminate, gender-based policies, rules and practices, including same-sex physical education classes or having male and female students wear specific colors at graduation.

The department framework applies to New York public, charter and private schools, BOCES, public colleges and universities and universal prekindergarten, but do not apply to private schools run by a religious organization.

Transgender and LGBTQ+ students often come out at school before they have at home — especially if they expect their parents or guardian will not be receptive.

The guidance urges schools to honor a transgender student's request to change their gender identity, affirmed name and pronouns in district records and maintain the students' privacy and confidentiality. 

School administrators must encourage students who come out in school to communicate with their parents, but the district is not required to notify a parent or guardian if their child is transgender, or identifies with a different name or pronoun unless they specifically request to see school records.

"It's a lot for schools — this is not easy," DeCataldo said. "If the student says it's safe, and when it's not safe, [school personnel must] really be talking with the student about the potential ramifications, including, something might go back, might go home and might have the students' affirmed name on that as an oversight. And that would only be as an oversight because we're telling schools that if a student has said it's not safe for them, then they should take every opportunity not to let that information go back to the parent. But always to be continuing to talk to the student about, and assess, seeing where they are and how they're feeling about taking different steps."

Advocates say the state's guidance will create a culture of acceptance and protect LGBTQ+ students and youth in the state.

“Recent GLSEN research shows that 83% of LGBTQ+ students have faced harassment in school," GLSEN Executive Director Melanie Willingham-Jaggers said in a statement. "As attacks against LGBTQ+ youth — especially trans youth — continue, GLSEN commends the New York State Education Department for their new framework to support students and educators. ‘Safe’ is the bare minimum, and every single student deserves a safe and affirming learning environment with access to inclusive school policies, curriculum and resources. When students have access to these resources, they thrive, and we encourage our leaders and administrators to continue to rise up for our most vulnerable students.”

But students' discussing or expressing their sexuality or gender identity in school is a sensitive issue for parents, as states like Florida have banned the topic in public schools.

Jason McGuire, president of New York Families, says the new guidelines discriminates against parents and guardians. 

"We see this as a parental rights' issue," he said Wednesday. "I mean, this is really the New York State Education Department declaring a war on parents. I just don't understand why Albany politicians, bureaucrats, the Regents board, the commissioner, always see themselves pitted against the parents rather than working with them."

SED's legal update misinterprets state law, said McGuire, who expects the framework will be met with legal action. It could also lead to more New Yorkers pulling their children from public school, he said. 

"Parents are the ones that are responsible for their children, and this places the politicians, the bureaucrats, in the place of mom and dad," McGuire said. 

The state Education Department updated its guidance as late momentum was building in the state Legislature to pass legislation to mandate teaching of LGBTQ+ history for K-12 students. Neither proposal to make the change passed in either house.

The guidance took effect immediately, but SED does not have a mechanism to enforce its implementation in schools statewide.

"It will be up to local school leaders to confer with their legal counsel to ensure they meet the needs of and support all their students and comply with the New York’s Human Rights Law and Dignity for All Students Act," according to the department. "This is a resource designed to help public school administrators, teachers, student-centered support personnel, school staff, students, parents/guardians, and the community continue to take proactive steps to create a culture in which transgender, gender expansive, and nonbinary students feel safe, supported and included."

SED is recommending districts hold professional development to train teachers and staff about the new guidelines, but implementation will vary on a case-by-case basis. 

"What we want all school staff to be ready to do is to respond appropriately and warmly to students so they feel supported," DeCataldo said.