Utah school board studying when students can use a new name or pronouns for gender identity

The law currently is up for interpretation.

(Trent Nelson | The Salt Lake Tribune) Flags stand at City Hall in Salt Lake City on Tuesday, Nov. 17, 2020, to mark Transgender Awareness Week in remembrance of transgender persons murdered in the last year. The Utah Board of Education is weighing what it can do, within state law, to allow teachers to recognize transgender students.

Utah law is unclear on whether teachers can follow a student’s preference to be called by a different name or pronouns that match their gender identity.

Some strictly interpret state statute to say that educators must first ask for parent permission before even agreeing to use a nickname. Others, though, say that’s not the case and that could put LGBTQ children at risk, potentially outing them to family that may not accept them.

The Utah Board of Education and its attorneys are currently trying to figure out where the line is so it can offer guidance.

“We’ve gotten many questions about this,” said member Scott Hansen, who leads the board’s Standards and Assessment Committee that is studying the issue. “We need to give this some thoughtful intention.”

At stake is how transgender and other nonbinary students in Utah’s public K-12 classrooms are treated, whether they can be referred to by their requests or if they will be forced to use a name they don’t feel fits them (also referred to as a dead name), which studies say causes harm. Will a kid who identifies as “she” be called “he”?

The topic could easily touch off a battle in this conservative state — and already did, somewhat, during the committee discussion last week. And some on the board believe it could take a lawsuit or more direction from the state Legislature to actually settle the question.

Lawmakers attempted to take up the issue of whether transgender students could participate in high school athletics earlier this year; the bill failed to advance but is expected to come up again in the 2022 session. School board members on Friday said they would leave that decision to the state, as well as use of restrooms and locker rooms by LGBTQ individuals, as they seek some clarification on naming.

Bryan Quesenberry, the board’s attorney, said there is no specific statute in Utah about students’ preferred pronouns or names. But state law does dictate that parental rights come first in education and that parents are supposed to be informed about what happens with their child.

It states: “The state’s role is secondary and supportive to the primary role of a parent.”

That leads him to believe that it’s “implied/suggested” that alternate names or pronouns that differ from what is in a student’s file should be reported to parents, he told The Salt Lake Tribune in an email, unless it’s a derivative of their name (like a Rebecca wanting to go by Becky).

Where it gets complicated, though, Quesenberry said, is if the child could suffer from the communication with parents, such as being kicked out of their house for being LGBTQ. State law says that school staff also have a responsibility to protect students from abuse or neglect by their family.

The initial draft of the guidance document from the committee attempts to walk the line. But it is not clear cut, the attorney noted, and it’s why they are looking into it more and will continue to revise.

Some members of the committee said, so far, they are only more confused about what teachers can and can’t do, when they can use their discretion, what names are acceptable substitutes and what could put them in legal trouble. For instance, does a middle name count? Could educators just refer to all students with the gender-neutral pronoun “they”?

“Currently, teachers are walking on a razor’s edge,” said board member Janet Cannon. “They are wondering how they support the student and not leave out the parent.”

And students, she added, are left questioning who they can confide in and if it will be kept private if they do.

Quesenberry said staff will also weigh circuit court rulings on the issue and guidance from the White House that switches with different administrations. They will also look into whether a student being 18 years old, which many high school seniors are, changes anything. He hopes to have a new draft to the committee next month.

“The landscape is in flux,” he said. “We’re trying to do the best we can looking at case law.”

Others raised concerns during the public comment period.

Amanda Darrow, the director of youth, family and education at the Utah Pride Center, rejected the interpretation of Utah law that would require teachers to talk to a student’s parents about their preferred pronouns or wanting to be called by a new name.

Darrow said that opens a child up to harm. The student may be telling a teacher because the classroom is the only place they feel OK to truly express themselves. It’s possible they could be abused at home if they come out as LGBTQ to their parents, Darrow said.

She said it is important for students to be called by their preferred names and pronouns, that it can improve their health and acceptance of self.

“Whether you identify as transgender, nonbinary, two-spirit, questioning, agender or anywhere in between near or far, your identity is valid,” Darrow added. “You deserve to belong.”

The state, she said, should not be forcing educators to effectively “tattle” on their students or out them as they are discovering themselves. She believes the safety of students should take precedence. Jayrod Garrett, an educator in Layton and a self-described nonbinary man, agreed.

Garrett said: “If a parent tells their child that all gays are going to hell, then a child isn’t going to tell them about their identity.”

Garrett believes if a student wants to be called by a different name or use they/them pronouns, that they should be able to. It’s no different, Garrett added, then a Christopher or a Christina wanting to go by Chris because it makes them more comfortable.

A few of the speakers wore rainbow-colored masks and pins with their preferred pronouns.

Others, though, including some administrators, said that parents should be informed of everything going on with their child in the classroom, including a preference to shorten their name. They say that’s what the state law guarantees: parental rights as the priority.

Jon England, an administrator in Weber School District, said he believes a child “could only benefit” from open communication involving the parent. He believes parents can and should help their kids navigate how they are feeling, including with gender identity.

“The only time I would consider not contacting a student’s parents is in the instance of abuse, which are rare,” he said.

There are not statistics, though, on how many K-12 students in Utah identify as LGBTQ. And there is no telling how many are in households that would not accept those identities.

Parent Wendy Wixom added that she, too, would want to know if her child requested to go by different pronouns. She suggested that excluding parents could lead teachers to feel comfortable hiding things and could also set up an environment where more grooming occurs, though she offered no evidence to support that.

The debate has also started at some school districts in the state.

Davis County School District in northern Utah came under fire last week after some on social media posted a list of the supposed rules there for teachers about gender identity and pronouns. Davis spokesman Chris Williams said that post did not come from the district and included some inaccuracies.

“It certainly is not something we have produced,” he said.

Until the district gets more direction from the state, Williams noted, it is allowing students to be called by other names. He said if someone named John wants to be called Caroline, for example, they can. The same applies to preferred pronouns.

What the district doesn’t allow, though, is teachers polling their students on their preferences. A student has to instead come to the teacher directly to ask for the change. The district also doesn’t prohibit individual conversations on the topic, which the social media post suggested.

Part of the list of rules did include notes on flags, including a ban on teachers in the district having a Pride flag in their classroom. That much is true, Williams said. The district does not allow teachers to have any flags that could be considered “political;” Williams said that also includes flags supporting Black Lives Matter or police.