Colts Neck School Board Repeals State Transgender Student Policy

COLTS NECK, NJ — The Colts Neck Board of Education has voted 6-2 to repeal a controversial state education policy that addresses how districts can counsel students who identify as transgender.

The board, in its repeal, referred to the policy as "superfluous" to state law protections against discrimination and bullying, and "ambiguous" in its language - and noted the policy was recently referred to as "not mandatory" by the state itself.

And this follows action - also on Wednesday night - by Howell to repeal the same policy and by Holmdel to set a vote on the repeal at its next regular meeting of the school board.

State Department of Education Policy 5756 was put into place most recently here in 2019, and it offers guidance for school districts regarding transgender students, based on the Law Against Discrimination.

But legal counsel in another district - Hanover in Morris County - has challenged the policy as not actually being mandated, as it was originally characterized by the private policy-writing company, Strauss Esmay Associates. In a legal argument by the state attorney general's office earlier this month, the office said the policy was not mandated.

This opened the door for repeal of a policy that many parents oppose because it puts conditions on notifying parents whose children may approach school counselors about identifying as transgender or nonbinary.

Board President Heather Tormey and five other board members voted to repeal 5756 and she said the board acted quickly once the statement came out that it was not mandatory.

The repeal doesn't affect the state Law Against Discrimination or the state Anti-Bullying Bill of Rights Act, which the board fully upholds, she said.

But she said it was an opportunity to "take an ambiguous policy off the table," one that, she added, was taking attention away from other educational matters for the board to address.

Earlier this summer, some school boards amended policy 5756 to, in many instances, require parental notification for students who "came out" to school personnel about their gender identity. Those districts immediately found themselves the object of a lawsuit by the state attorney general's office.

But in Colts Neck, the board in June put a "pause" on taking that action, pending the outcome of the litigation.

Marlboro, Manalapan-Englishtown, Middletown and Hanover in Morris County are all now under a court-ordered injunction and cannot implement their amended policies. Hanover has since voted to repeal the policy, but is being challenged by the state for violating that injunction because of the repeal.

Tormey said the Colts Neck district has "great trust in its staff." And she said teachers are very familiar with the resources students can turn to for a variety of issues - academic, social and mental health, as well as questions of gender identity.

She said partnerships with parents and transparency are hallmarks of the district. And she said the board would always want to be in compliance with any mandatory policy.

And she pointed out a letter to the community by Superintendent MaryJane Garibay emphasizing this commitment. You can read the letter here.

Under the board's bylaws, only one meeting was required to repeal Policy 5756, and she said the district specifically did not want any lag time in addressing the issue.

The board's resolution was approved on Wednesday, and in part, refers to oral argument involving the litigation between the state and the Hanover Board of Education.

On Sept. 6, Deputy Attorney General James Michael specifically represented and advised Judge Stuart Minkowitz that the Board Policy 5756 is not a "mandatory policy," the Colts Neck resolution cited, referring to the Hanover matter.

The resolution goes on to say "Colts Neck Township Board of Education recognizes the burden that the current litigation with New Jersey School districts and the ambiguity surrounding the language in maintaining and/or amending Policy 5756 is causing."

And it continues "Colts Neck Township Board of Education has confidence in its staff and recognizes their ability to implement and adhere to laws, policies, and regulations that protect all students."

The resolution says the board "believes that Policy 5756 is superfluous to New Jersey Laws Against Discrimination, and as a result abolishes Policy 5756 in its entirety, while all other laws, policies and regulations shall continue in full force and effect in order to ensure enforcement of non-discriminatory practices."

Regarding the vote, Tormey said she, John Camera, Brenna Dillon, Tracy Kramer, Jessica Ramirez and Andrew Rytter voted for repeal. Board Vice President Kevin O'Connor and board member Alison DeNoia voted no. One member was absent.

In terms of the previous characterization of the policy as mandatory, Strauss Esmay, in a lengthy statement in response to the controversy around 5756, has said, in part:

"There may be some confusion regarding Strauss Esmay’s usage of the word 'mandated' in our classification system of Policy and Regulation Guides. Strauss Esmay’s Policy and Regulation Guides are classified using an “in-house” set of criteria based on many years of experience. . . . .

"In addition, Strauss Esmay may classify a Policy Guide as mandated because the issue has significant health and safety or liability implications for a school district. However, a Board of Education is free to accept, reject, or modify any Policy and/or Regulation Guides provided by Strauss Esmay Associates," a portion of the statement said.

And the state Attorney General's office provided a response to the issue:

"New Jersey’s public school officials must comply with the Law Against Discrimination (LAD). The Department of Education’s guidance on this issue (found at Transgender Student Guidance for School Districts) explains the existing statutes and regulations. It provides guidance to public schools on how to comply with the LAD, but is not legally enforceable on its own," the statement from the office said.