Monday, July 04, 2016

Do You Know The Law?

Evidently the Attorney General of Texas doesn’t.
Texas AG Doesn't Understand It's Illegal to Out Trans Students
Ken Paxton argues that parents have a right to know if their child may be transgender.
The Advocate
By Sunnivie Brydum
June 29 2016

The Republican attorney general in Texas says a local school's transgender-inclusive policy violates state law, and he proposes an idea that may itself run afloul of federal protections for trans students.

Responding to a query from noted transphobe Lt. Gov. Dan Patrick, Texas Attorney General Ken Paxton Tuesday issued a nonbinding opinion that declares a modest trans-inclusive policy at the Fort Worth Independent School District a violation of the law. So Paxton proposes his own solution: for faculty to out trans students to their parents. 
This is where the Attorney General runs afoul of federal law which as the chief lawyer for Texas he should know.
Instead, Paxton’s criticism of the policy focuses on a provision that instructs teachers and faculty to confer with a transgender student before discussing that student’s trans status with their parents or legal guardian. Paxton writes:

“Far from creating a partnership between parents, educators, and administrators regarding their children's education, the Guidelines relegate parents to a subordinate status, receiving information only on a 'need-to-know basis.’ …

“Furthermore, the provision requiring school personnel to ‘work closely with the student’ to determine to what extent, if any, a parent will be involved in the student's transitioning suggests that employees could, pursuant to these restrictions, encourage some children to withhold information from a parent. … Such action is both against state law and grounds for discipline under the Education Code.”
That whack you heard is the Attorney General running smack face first into a brick wall. AG have you ever heard of FERPA and HIPAA? Maybe you should dust off your old law books.
What is FERPA?
The Family Educational Rights and Privacy Act (FERPA) is a federal privacy law that gives parents certain protections with regard to their children's education records, such as report cards, transcripts, disciplinary records, contact and family information, and class schedules. As a parent, you have the right to review your child's education records and to request changes under limited circumstances. To protect your child's privacy, the law generally requires schools to ask for written consent before disclosing your child's personally identifiable information to individuals other than you.
[…]
When a student turns 18 years old or enters a postsecondary institution at any age, all rights afforded to you as a parent under FERPA transfer to the student ("eligible student"). However, FERPA provides ways in which a school may—but is not required to-share information from an eligible student's education records with parents, without the student's consent.
And then there is a thing called HIPPA
Do school health programs and their staff have to comply with the Transaction Rule?
The answer depends on whether health care providers, including school health programs and staff, transmit any health information in electronic form in connection with a HIPAA standard transaction, making them a covered entity under HIPAA. Covered entities must comply with the requirements of the Transaction Rule, including the use of specified data elements and transaction codes, when engaging in a standard transaction.
So it is a little murky is FERPA and HIPAA prevent schools from informing the parents about their child being trans, the article goes on to say…
In fact, the American Civil Liberties Union reports that it’s illegal for school staff to discuss a student’s sexual orientation or gender identity with other faculty. It's a violation of privacy, and a dangerous one.

Numerous trans and LGBT youth advocates have pointed out that such considerations can be critical for young people who come from hostile home environments. The Gay, Lesbian, and Straight Education Network’s Safe Space Kit advises ally educators to “exercise the utmost discretion and professionalism and be respectful of student privacy in discussion of these matters.”

The National Association for School Psychologists likewise advises that educators should be cautious about publicizing a student’s trans identity or even a student’s exploration of their gender identity. The association’s professional ethical guidelines instruct school psychologists to “not share information about the sexual orientation, gender identity, or transgender status of a student (including minors), parent, or school employee with anyone without that individual’s permission.”
So the Mr. Paxton is stepping out on dangerously thin ice when he calls for the “Outing” of trans students. The parents can be notified that their child is trans but it is very, very murky area of the law when healthcare providers are to notify parents about health care issues without violating patient healthcare providers confidentiality because there is also the age of emancipation in Texas is seventeen. In addition, it is also a grey area about when school officials can notify parents because of FERPA.

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