Should schools be required to keep the gender identity of transgender students private from their parents? Because federal law does not address this question, school districts get caught in the middle of two arguments. “Transgender Student Advocates” assert that the Constitutional privacy right allows students to keep their gender identity private from their parents. Conversely, “Parental Rights Advocates” argue that the Constitutional privacy right enables parents to control how schools address their child’s gender identity. This debate, and its focus on privacy, creates a seemingly intractable debate, pitting student rights against parental rights.
This Article demonstrates that the privacy right claimed by both parties obscures the actual rights at issue and threatens the welfare of all parties. Thus, instead of focusing on privacy, this Article proposes a “Parental Consultation/Student Control Process” to address this question. This Process identifies and upholds the fundamental rights of students and parents and incorporates social science regarding gender identity to address the concerns of all parties. Specifically, the proposed Process addresses the rights and concerns of parents by creating a procedure in which parents could be actively involved in their child’s gender identity journey. However, the Process also upholds the rights and welfare of students by granting them the right to decide how to explore, identify, and express their gender identity. The result is a Process that creates an open and safe environment in which schools can honor and consider the interests of all parties and uphold the ultimate goal of protecting the well-being of all students.