Indiana’s “Don’t Say Gay” HB 1608 (Pt. 2): The Good, the Bad, and the Ugly
Spoiler alert: There’s no good here. Just bad and ugly.
Indiana’s HB 1608 becomes effective July 1, 2023 for all public schools. The bill creates two new statutes:
Teaching human sexuality (creating a new statute: I.C. 20-30-17)
Outing students with changed names, pronouns, or titles (creating a new statute: I.C. 20-33-7.5)
Imprint Legal Group dissected the first part in an earlier post regarding “human sexuality” instruction for little kids.
Let’s break down the second statute, which is far more concerning and confusing:
Students with Changed Names and Pronouns (I.C. 20-33-7.5)
What the law says:
School staff must notify at least one parent when a student (of any age*) requests a change to:
Name
Pronoun, title, or word to identity the student
*There has been some confusion about this requirement because HB 1608’s first part only applied to teaching human sexuality to preK-3rd grade. HB 1608’s second part - these name/pronoun changes - apply to all grades.
The school must notify the parent in writing within 5 business days of the student’s request. (Business days are different from school days, folks. Business days are typically Monday-Friday, not days when school is in session. So if a kid makes a request on Friday before your school’s two-week winter break, a school has until Friday of the following week to notify a parent, even if everyone’s in a cheese-induced couch coma in that week between Christmas and New Years.)
The legislators also made two other telling changes:
Explicitly stated that licensed school counselors and school psychologists, who are usually prohibited from disclosing privileged and confidential information that a student would tell them, are mandated to follow the new “outing” law (revising I.C. 20-28-10-17 and I.C. 20-28-12-5)
Reminded everyone of their duty to report child abuse or neglect under I.C. 31-33-5.
Questions unaddressed by this law:
What’s a “change”?
Schools are supposed to notify a parent when there is a “change” in name, pronoun, title, or word to identify a student. But what’s a change? Remember, this law applies to all students, not just those who wish to change from a traditionally masculine name to a traditionally feminine name or visa versa.
My birth certificate says Jessica, but for years I asked my teacher on the first day of the school year to call me Jessie and, in my later sophisticated and mature high school years, Jess (I had to wait for “Jess” until a much cooler girl named Jess moved away and the nickname was up for grabs again). Anyone who calls me “Jessie” today knew me from a very specific time of my life; they wouldn’t dream of calling me “Jessica.”
Would my teacher need to notify my parent that I asked to be called “Jessie” instead of “Jessica”? After all, “Jessie” is a technical change from “Jessica.” Or what about these other “first day of school requested changes” that happen all the time, like:
What if a student wants to go by a middle name?
What if a student wants to go by a nickname? (ex: Richard to Dick)
What if a student wants to go by a shortened form of their name? (ex: Ashley to Ash or Samantha to Sam)
What if a student wants to go by their original and additional pronouns? (ex: he/him to they/him)
Under the law, all of these changes might require parental notification. Each school district needs to determine prior to the start of the 2023-24 school year how it will define a “change” to names and pronouns. Some districts will over-enforce the law and notify parents of every tiny change in names (like Jessica to Jess). But if the school only enforces this law when transgender or non-binary students request a name or pronoun change, it is highly likely to violate Title IX, which prohibits differential treatment on the basis of gender.
2. What’s a “request”?
The law does not address if the student’s request needs to be in writing or verbal. The law does not address if a “request” is for changes in school records (i.e., “I want the name on my transcript and all paperwork to be different”) or everyday verbal communication (“i.e., “I want my teacher and friends to call me River.”)
What if a student only wants a changed name and pronouns in one class, but not another? Kids will tell you which teachers they feel more comfortable with and it is common for students to act differently with different teachers depending on how safe and affirmed they feel in that particular adult’s presence. So what if the student only wants a different name in performing arts class? What if they only want to be called a different name while playing basketball? Are all of these “requests” which require parental notification?
3. If a student requests a change, but they don’t understand the consequences, can the school inform them of next steps and ensure they want to make this change?
The law does not prohibit some ‘informed consent’ conversation with the student and double-checking the student’s request before proceeding (or as Regis Philbin would put it: “Is that your final answer?”) Many children, especially younger kids and especially with a new law, will not understand the ramifications of asking their teacher to be called a different name in class. There is nothing legal that would prohibit a short “Are you sure you want to be called Zoe, honey? Because if you do, I am required by law to notify your mom. I just want to double check before we go down that road.”
4. What if one parent is affirming but another parent isn’t?
Personally, I’ve never disagreed with my spouse about anything related to raising our children, so this is difficult to relate to.
Of course, it’s very common for two parents or caregivers to have different opinions if their child wants to change their name or pronouns. The law only requires one parent be notified. If parents or caregivers are divorced or separated, it stands to reason that the school is going to pick the parent who has the most interaction with the school and/or who will be the most affirming of their child. The differences between disagreeing parents are the purview of marriage counselors and family court, not school teachers.
5. What if the parent isn’t okay with the student’s requested change?
The law requires written parental notification, but doesn’t address anything that comes after that. Parental consent or affirmation is not legally required for a school to honor a student’s requested change. A school’s response to a non-affirming parent should align with their normal procedures under Title IX and gender support plans in the school district. Remember, the procedures for cisgender and transgender students must be identical, according to the U.S. Department of Education, Office for Civil Rights (OCR)’s interpretation of Title IX.
6. What if the school believes notifying the parent will result in the child being subject to abuse, mental distress, or being kicked out of their home?
The legislators tacitly acknowledged that parental notification (or, to put it more bluntly, forced outing) can result in grave consequences for LGBTQIA+ children, who statistically face increased rates of suicide and unhousing when faced with disaffirming families.
What happens when the school already knows the child has mental health concerns, including suicidal ideations, and alerting their parent could put the child in danger?
Legislators imply that a parental notification may need coupled with a call to the Department of Child Services, by putting these provisions in the law right next to each other, but schools should take extreme caution around this topic. Administrators need to juggle parental rights, mental health support, special education support, and coordination with law enforcement, DCS, and their general counsel when they know that following this state law will inevitably harm the child and, to a lesser concern, increase the district’s liability.
Note 6/9/23: ACLU filed a suit to challenge the first part of HB 1608 (I.C. 20-30-17-2), but the lawsuit does not address this portion of HB 1608 (I.C. 20-33-7.5). This “forced outing” or “parental notification” statute is not currently challenged in court.
Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your school or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com.
All posts of Imprint Legal Group and its authors are intended as information, not legal advice.
