In School Administrative Unit 70, an interstate district straddling the Vermont-New Hampshire border, transgender students are explicitly given the right to keep their gender identity private.
The goal is to give students a safe place: Some kids may hide their gender identity at home, but be openly transgender or gender nonconforming — meaning they do not adhere to stereotypical gender norms — at school. Others may be confiding in a trusted teacher or staff member.
Under a district policy known as JBAB — a student gender policy used in New Hampshire school districts — school staff cannot tell parents, family members or other school employees about a child’s gender identity “unless legally required to do so or unless the student has authorized such disclosure.”
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But now, that policy is facing a legal threat.
This school year, a group of anonymous parents in Hanover, New Hampshire, is seeking to strike down those protections, according to communications obtained by VTDigger through a public records request.
Richard Lehmann, a Concord-based attorney, told district officials in an October letter that he was hired by parents to “demand that the (school) Board repeal or substantially amend” the policy.
The schools’ requirements “interfere in the constitutional rights of parents to raise their children without undue interference from the government” and “violate federal educational privacy laws which guarantee parental access to educational records,” Lehmann wrote.
The parents’ children attend the Bernice A. Ray School in Hanover, which is the focus of their legal threat.
That school serves only New Hampshire elementary school students. But it’s possible that other schools in the district — all of which have identical JBAB policies — could be impacted too.
Asked if he hoped to make a broader challenge to the district’s protections, Lehmann said, “No decisions have been made at this point.”
Jay Badams, the superintendent of SAU 70, said that district officials are consulting with their lawyer.
“If it were determined that we were violating the law somehow, then we’d have to weigh our options,” Badams said. “And figure out, what do we do that still does maximize the protections we have for our students, and also allows us to not be afoul of the law?”
SAU 70, the nation’s first interstate school district, is made up of three schools in Hanover, New Hampshire, and one — Marion Cross Elementary — in Norwich, Vermont.
After completing fifth grade at school at Marion Cross, Vermont students cross the Connecticut River into Hanover to attend the Frances C. Richmond middle school and Hanover High School. The district also draws students from a handful of other supervisory unions in Vermont.
Roughly a third of the district’s students are Vermonters, according to Badams.
The district has had the JBAB policy on the books since 2016. (JBAB is a policy label and not an acronym.) It’s unclear what sparked the Hanover parents’ challenge now, or how many parents are involved.
In an interview, Lehmann declined to identify the parents he represents, but said there were “multiple.” Lehmann is the general counsel for the New Hampshire state senate, a position he said is not connected to his actions in Hanover.
He is also involved in legal challenges to school transgender policies in Gilford and Exeter, New Hampshire.
The challenge comes as rules regarding transgender students have stoked controversy in school districts around the country.
In Hanover, parents are largely worried about the question of confidentiality: Should educators and school officials be required to inform parents of their child’s gender identity?
“I don’t think it’s the place for the government to restrict the flow of information to parents because they’re concerned about how the parents might respond,” Lehmann said. “In New Hampshire, the parents have a constitutional right to guide their children’s upbringing and development.”
He noted that his own son is gay.
“(If) my child was denied the opportunity to have me wrap my arms around him, and tell him I love him no matter what, and I support him no matter what he’s going through,” he said, “I’d be furious with the school.”
But LGBTQ+ advocacy groups say that, if successful, the proposed changes would be harmful to children who don’t follow stereotypical gender norms.
In essence, advocates say, the change could mean that transgender or gender nonconforming students would be outed to their parents — a situation that could put them in danger.
“Oftentimes, youth face intense rejection at home,” said Dana Kaplan, the executive director of Outright Vermont, which advocates for LGBTQ+ youth. “And sometimes that can look like violence.”
Many young people exploring their gender see school as a safe place, or have teachers that they can confide in without fear of being outed, Kaplan said. Requiring school staff to inform parents could force students to keep their identity hidden — which carries its own costs.
“If a youth has not chosen to come out at home and they have chosen to do that at school, it’s really important to have the protection for them to be able to have that space to explore,” Kaplan said.
Badams, the superintendent, said he shares those concerns. District officials have not yet decided how to proceed, he said, but noted that no policy would be changed without discussion in a public forum.
He emphasized that administrators’ highest priority is their students’ well-being.
“In the end, that really should be the basis for our policy decisions,” he said. “How do we best protect our kids?”
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