The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. §§ 99.00 et seq.) is a federal law that protects the privacy of student educational records. FERPA gives parents certain rights with respect to their children’s educational records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. (34 C.F.R. § 99.4-5).
Under FERPA, students, current or former, have a right to seek to amend their school records if said records are “inaccurate, misleading, or in violation of the student’s rights of privacy.” (34 C.F.R. § 99.7(a)(2)(ii)). Transgender students wishing to change their name and gender marker on their educational records can seek such an amendment under this federal law.
What are my rights under FERPA?Under federal law, you (or your parents or guardians if you are under 18) have the right to request that your school change your name and gender marker on your records if you feel they are incorrect, misleading, or violate your privacy. (34 C.F.R. § 99.7(a)(2)(ii)).
FERPA states that no educational institution shall be granted funding if it does not provide parents and/or students a hearing process through which they can challenge the content of school records, insure that the records are not inaccurate, misleading or otherwise in violation of the privacy or other rights of students, and receive an opportunity for the correction or deletion of any such inaccurate, misleading, or otherwise inappropriate data contained therein. (34 C.F.R. §§ 99.7(a)(2)(ii), 99.21).
Can I request this change if I’ve already graduated?Yes, you have the right to request a change to your records. (34 C.F.R. § 99.7(2)(ii)). Many transgender students wish to amend their secondary educational records after graduation to ensure that anyone who requests those records (for example, college admissions offices or potential employers) see only the correct name and gender marker on their transcript.
How are my records inaccurate or misleading?Federal policies and regulations make it possible to change your name and gender marker on federal identity documents such as U.S. passports, U.S. consular birth certificates, Veteran’s Health Administration cards, and Social Security Administration records. Additionally, most states allow amendments or corrections to gender markers on driver’s licenses, state IDs, and birth certificates. When a transgender person completes the legal requirements to change identity documents to reflect who they are on official state and federal government documents, it can be misleading for a school to maintain the former records.
How does refusing to change my records violate my privacy?You have the right to keep your transgender status private. But by keeping your former name and gender marker on your educational records, your school is essentially outing you to anyone who looks at them. As the Court of Appeals for the Second Circuit has stated, it is “beyond a doubt” that transgender status is “excruciatingly private and intimate” for those who wish to keep it private. Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999).
Why should schools change a transgender student’s records?As stated above, the legislature’s intent in passing FERPA was to protect students’ privacy rights. The guarantee of FERPA is to give students an opportunity to amend educational records that contain information that is misleading, inaccurate, or violates those privacy rights. If an institution refuses to comply with FERPA’s mandates, it runs the risk of having its education-related federal funding withheld or terminated, When a school refuses to amend transgender students’ records, it risks having its federal funding withdrawn, because it is willfully leaving misleading, inaccurate, and privacy-violating information in those documents.
Beyond FERPA, there are practical and ethical reasons why schools should duly amend transgender students’ records. By not correcting a student’s gender marker on their school records, the school is essentially disclosing that student’s transgender status to anyone who sees their records, This has the potential to place the student in harm’s way; exposure of transgender status is directly linked to high rates of discrimination, harassment, and even violence. These risks are present in nearly every aspect of life as an out transgender or gender non-conforming person. Of the 6,450 transgender and gender-nonconforming respondents to the 2011 National Transgender Discrimination Survey (NTDS):
Only a transgender person should be able to decide when, if at all, to disclose their transgender status.
The refusal to correct a transgender student’s school records can also be emotionally harmful. When an organization or agency is unwilling to issue identification that reflects a person’s gender identity, it is making a value judgment on the legitimacy of that gender identity. There is no reason for a transgender student to suffer such indignity.
What does FERPA require my school to do?If you wish simply to review your educational records, FERPA requires that schools honor a request to review those records within 45 days of receiving the request. (34 C.F.R. § 99.10(b)). Some states have laws similar to FERPA that require schools to provide access within a shorter period of time. You should consult a local attorney to find out how long schools have to respond in your state.
FERPA requires that schools provide parents with an opportunity to inspect and review educational records, but not to receive copies, except in limited circumstances. (34 C.F.R. § 99.10(d)). FERPA also requires your school to give you a formal hearing regarding a requested amendment should you request such a hearing. (34 C.F.R. § 99.20(c)).
How do I exercise my rights under FERPA?If you have a trusted faculty member or administrator, it may be best to approach them first with this request. You may want to bring some helpful materials, including publications from Lambda Legal’s Transgender Rights Toolkit, in order to help your school understand how important it is to be able to update your educational records.
Some school districts have been very open to assisting transgender students in updating their records. Other schools may be less familiar with transgender issues, and may need extra support in updating policies and procedures to support transgender students and be in line with best practices. The Gay, Lesbian & Straight Education Network (GLSEN) has drafted a great model policy for school districts to follow, and both Connecticut and Massachusetts have issued excellent guidelines on how schools should comply with nondiscrimination laws. If an informal approach is unsuccessful, we recommend sending your school administrators a letter like this one, which outlines the legal and practical reasons why your school should amend your educational documents.
Unfortunately, school districts are not always immediately cooperative, even when presented with compelling arguments. Often, we hear a school district say “We can’t do that” or, in the same vein, “Our lawyer says we can’t do that.” If this is your school district’s response, remember: There are no laws preventing your school district from making this change. The school district may have an established policy of not making name or gender marker changes, but remember that FERPA requires a school district to allow students to seek to amend misleading or inaccurate information on their educational documents. A transgender student’s former name and gender marker inaccurately reflect that student’s gender, and could be misleading to anyone likely to see those records. Thus, any policy that prohibits a school from changing a student’s name or gender marker would be in direct conflict with FERPA.
