U.S. Dept. of Education investigating California over gender identity privacy law

SACRAMENTO, Calif. - The U.S. Department of Education is going after California over gender identity policies in schools.

The agency announced an investigation into California's Department of Education (CDE) Thursday, alleging the state violated the Family Educational Rights Privacy Act, or FERPA, the federal law that protects students' education records and gives parents the right to access and control them.

California's Assembly Bill 1955, which went into effect at the beginning of the year, prevents schools, districts, and similar educational offices from implementing or enforcing policies or rules that require employees to share information about a student's sexual orientation or gender identity and expression with any person, including parents, without the student's consent, with few exceptions.

The federal government said numerous educational districts and agencies across California are possibly violating FERPA "to socially transition children at school while hiding minors' 'gender identity' from parents." 

U.S. Secretary of Education Linda McMahon says these actions violate FERPA because parents are reportedly not being informed about students' gender identities, which may be discussed during the school day. 

Federal officials said they're concerned California's Department of Education is playing a role, either directly or indirectly, in these alleged violations because of the number of local education agencies allegedly violating FERPA.

What they're saying:

"Teachers and school counselors should not be in the business of advising minors entrusted to their care on consequential decisions about their sexual identity and mental health. That responsibility and privilege lies with a parent or trusted loved one," McMahon said in a statement. "It is not only immoral but also potentially in contradiction with federal law for California schools to hide crucial information about a student’s well-being from parents and guardians."

The other side:

CDE responded to the allegations on Friday, clarifying that the state's law doesn't require schools to keep a child's gender identity a secret from parents, but rather prohibits districts from making rules forcing educators to share such information. 

"AB 1955 prohibits local educational agencies from mandating that staff disclose students’ gender identity to parents without student consent, unless otherwise required by state or federal law.  AB 1955 does not mandate nondisclosure. Based on the plain language of both laws, there is no conflict between AB 1955 and FERPA, which permits a parent access to their student’s written records upon request," the CDE said in a statement to KTVU. 

Additionally, State Superintendent of Public Instruction Tony Thurmond responded to the allegations, saying "Our students must be safe in order to learn. I have heard from so many students and families whose safety has been impacted by forced outing policies. To our LGBTQ+ youth and families, I want to make sure that you hear us as loudly as we hear you: You are heard, you are protected, and you are loved."

Thurmond had also previously affirmed continued protections for students based on gender, gender expression, gender identity, and sexual orientation. 

"In California, 'all' still means all. While the Trump Education Department announced that they will no longer protect all students from discrimination, California law is unaffected by recent changes to federal policy and continues to provide safeguards against discrimination and harassment based on gender, gender expression, gender identity, and sexual orientation," Thurmond said in response to a "Dear Colleague" letter, an open letter sent from a federal official to make statements on bills.

The letter was sent on Jan. 31 by the U.S. Department of Education. Thurmond said the federal government was taking a backward step on protections guaranteed by Title IX, a federal civil rights law that protects against discrimination based on sex.

"While federal guidance devolves, our commitment to safeguarding the rights of all students persists," Thurmond said then.