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Washington state passes new law with potential to out LGBTQ+ students

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Stephane Mahe / Reuters
Stephane Mahe / Reuters

A citizen initiative that would increase the risk of violence and abuse of LGBTQ+ students is set to take effect early in Pride Month after being passed by the state legislature. While the initiative has yet to become law and the state courts have the opportunity to intervene, the introduction of such a policy is already impacting LGBTQ+ youth.

Initiative 2081 would allow parents and legal guardians to receive public school records — like vocational counseling and medical records — and would allow the opting-out of surveys, assignments, questionnaires, and any other student engagement activities that relate to a child's sexual experiences and orientation.

"At a time when LGBTQ+ youth — especially Trans youth — are being attacked on a national level, they are more vulnerable than ever," Kai Aprill-Tomlin, communications and membership development manager at the Gender Justice League (GJL), told the SGN.

Risks to youth
Medical and mental health records remain protected by other state and federal laws, like HIPAA and FERPA. After holding extensive conversations with legal experts, the GJL does not believe that I-2081 would automatically allow parents to access the medical records of their children, and noted that a state initiative does not overpower federal law. The initiative will, however, impact the sense of privacy for LGBTQ+ youth. It will create new risks for abuse and violence in their homes.

"If a parent learns their child is talking to a trusted adult at school about violence or abuse in the home, this increases the risk for [it] to ramp up," Aprill-Tomlin said.

Generally speaking, LGBTQ+ youth have smaller circles of trusted adults, and youth require supportive adults in school and home settings for healthy development. A key contributor to building trust between youth and adults is privacy.

The GJL is concerned that I-2081 will create additional conflict between
parents and vulnerable LGBTQ+ youth, even with state and federal protections in place. The organization thinks this initiative may lead youth to view parents and adults as untrustworthy, which may prevent them from asking questions or disclosing experiences of violence.

"We are deeply concerned that I-2081 will erode students' trust in adults and ultimately lead to more harm to youth," Aprill-Tomlin said. "When a student chooses to disclose to a trusted adult at school that they are questioning their gender or sexuality and this information is then given to the parents against the student's consent, then we teach youth that consent does not matter, to bottle up their feelings and ideas, and that adults are untrustworthy."

"As an organization that works with survivors of gender-based violence, sexual assault, and survivors of crime everyday, it is deeply concerning to us that this law may limit the sense of safety youth feel around adults," Aprill-Tomlin added.

"This is incredibly dangerous. Without trust, youth are unlikely to disclose if they are experiencing violence, harassment, bullying, or mental health issues. This can lead to disastrous outcomes: they suffer in silence, continuing to experience the bullying/violence; they self-harm; they turn to gun violence; or they end their life."

The organization is encouraging school boards to be mindful of HIPAA and FERPA protections of students as they create new policies, and to remind teachers and administrators of the federal rights of students. Under HIPAA, parents can access their children's protected health information when there is imminent danger and when the parent is able to reduce the risk of danger.

"Giving [parents] extra access to view medical and mental health counseling records does not have any positive impact on youth," Aprill-Tomlin said. "It erodes youth's privacy, ability to safely express themselves, and ability to exercise bodily autonomy. It increases the risk of self-harm and suicide."

Licensed medical and mental health professionals must maintain confidentiality under federal law. The Gender Justice League believes schools may maintain the confidentiality of personal information, even when not penned into a student's written records, such as conversations between students and teachers.

The GJL encourages youth to contact it if they feel like any adult or school has violated their rights to privacy.

Stephane Mahe / Reuters  

The benefits of sex education in schools
Current state law allows parents and legal guardians of youth under the age of 18 to opt out of classroom activities that relate to sex education, and I-2081 affirms that right.

However, "comprehensive sex education has a ton of benefits that we should all want for our youth: reduced risks of unwanted teen pregnancy, HIV and STI transmission, and sexual assault and domestic violence; and an improved ability to identify, prevent, and intervene in child sexual abuse, bullying, and homophobia," Aprill-Tomlin said.

Youth who receive sex education learn about ways to prevent, stop, and disclose sexual violence, including child sexual abuse. The GJL believes youth have the right to learn about their bodies and make informed decisions about how to have safe sex when they are ready.

"As a community that is greatly impacted by HIV, we have deep concerns about students being denied the opportunity to learn about how HIV is transmitted and the tools available to keep themselves and others safe," Aprill-Tomlin said.

Aprill-Tomlin highlighted how youth who forgo comprehensive sex education are more likely to both experience and perpetrate sexual assault and domestic violence, and are less likely to report or intervene in sexual violence and bullying as a bystander.

"Opting LGBTQ+ youth out of [sex] education sets them up for failure," Aprill-Tomin said. "All youth struggle with developing bodies and budding feelings and relationships, but for LGBTQ+ youth, there are added layers of questioning, confusion, and a sense of isolation, making them extra vulnerable to sexual assault, domestic violence, bullying, and hate crimes."

Arguments in favor of the legislation
A group of concerned citizens, known as Let's Go Washington, brought forth this initiative to the legislature after collecting 454,372 signatures from supporters. Lawmakers debated the initiative in this year's session and had the option to place it on the November ballot. They chose to enact the initiative into law as is.

Hallie Balch, press secretary for Let's Go Washington, told the SGN that I-2081 is an important step forward for parents and schools.

"It affirms the commitment schools have in both caring for children and in protecting the right of parents to know what their children are being taught in schools," Balch said. "It reinforces existing law that requires schools to update parents when medical or disciplinary actions are taken on their kids. I-2081 has received a broad range of support from hundreds of thousands of parents across the state, and we look forward to those protections taking effect in June."

In addition, Queer legislators Jamie Pedersen and Laurie Jinkins co-authored an op-ed in late February for the Seattle Times in which they said that "about 90% of the initiative is already common practice or state law." And that a hearing clarified that there would be no change to adolescent access to healthcare treatment, student privacy protections for healthcare records, and youth access to home and shelter support.

"We believe the initiative does not pose a threat to our LGBTQ+ youth," they added. "We will work closely with the state Office of the Superintendent of Public Instruction and the State Board of Education to ensure students are protected and the initiative is implemented correctly.

"However, we stand prepared to change the law should it put any member of the LGBTQ+ community at risk or threaten in any way a young person's right to protected healthcare."

Andrew Villeneuve, executive director of the NW Progressive Institute, an organization focused on public policy and research, who is in opposition to the initiative, spoke with the SGN on the potential impact.

"Much of the measure just restates existing law, which is why Democratic legislative leadership opted to pass it. But there are a few provisions that are concerning," Villeneuve said.

Although I-2081 acknowledges that there are instances where school districts can refuse the release of records (like during investigations of child abuse and neglect where the parent is the target of the investigation), one provision of concern requires parents to immediately be notified if their child is removed or taken from the public school campus without parental permission to a stay at a youth shelter or host home. Villeneuve said prior to I-2081, organizations providing services to unsheltered youth were allowed to delay notifying a parent or guardian if there was a compelling reason, such as abuse or neglect, gender-affirming care, or reproductive health services. I-2081 requires notification "if a child is taken or removed from school without permission, including to stay at ... a private home that volunteers to temporarily house youth that are seeking gender-related or reproductive healthcare services," according to Ballotpedia.

I-2081 was passed March 4 by the House (82-15) and Senate (49-0) and is slated to become law on June 6, unless the courts intervene.