Middletown Cannot Enact Transgender Student Policy, 2nd NJ Court Rules

MIDDLETOWN, NJ — On Monday, the New Jersey Court of Appeals ruled the Middletown Board of Education is forbidden from enacting a policy that requires schools notify parents when a student changes their name, pronoun or bathroom use in school.

This was the transgender student policy that got the school district sued by the state of New Jersey in June 2023; the state argues Middletown was putting LGBTQ+ and transgender kids at risk, and violating New Jersey's Law Against Discrimination.

Supporters of the Middletown BOE said the district was protecting parental rights.

In their 34-page decision, published here, the appellate court ruled to keep the injunction (legal block) a previous judge had put on the policy. On page 4, the judges wrote:

"We affirm the provision of the orders that enjoins the Boards from enacting the amended policies they adopted on June 20, 2023. We reverse, however, the provision of the orders that enjoins the Boards from considering alternative new policies."

What that means is Middletown is free to "amend" or "modify" the controversial policy that got it sued.

BOE President Frank Capone and vice president Jacqueline Tobacco said that means they are now free to remove the policy entirely, which they plan to do at Thursday night's special BOE meeting.

Up until now, the district was prohibited from making any changes to the policy, including removing it, said Tobacco.

"We filed the appeal to get the injunction lifted. And we will vote to rescind it Thursday night at the Board of Ed. meeting," said Tobacco Monday. "The Middletown school board was told by Strauss Esmay it was required to have such a policy. We were being treated differently than every other district in the state. We filed the appeal because we were being held captive."

"The court has made a significant ruling, finding that the Attorney General overstepped its bounds by having the court prohibit us from rescinding policy 5756," said Capone. "This is an incredible victory for the children, parents, residents of Middletown and the entire state."

The Attorney General has not dropped his original lawsuit against Middletown. However, he may drop it once the Middletown school board takes its transgender student policy off the books entirely.

New Jersey Attorney General Matt Platkin took the judges' decision Monday as a win for his side.

"We are pleased that the Appellate Division has affirmed the Superior Court’s finding that the challenged school board policies likely violate the New Jersey Law Against Discrimination and would result in irreparable harm to some of our state’s most vulnerable students," he said in a statement released by his office. "As all courts to have considered these cases have recognized, the state agrees that parents should be involved in making important decisions about their children. And as a parent, I certainly share that concern — which is why the state has never and will never seek a 'ban' on schools informing parents about their children. But what the courts have said is that is that schools cannot have a blanket policy that unfairly forces educators to choose between a vulnerable child’s safety and well-being and losing their job."

Middletown's transgender student policy was written Tobacco and Board lawyer Bruce Padula.

Why did they write it? Tobacco has long maintained that Middletown was told by a third-party vendor the district hired to interpret Department of Education policy that Policy 5756, "Transgender Student Guidance for School Districts," was mandatory. That policy from the Trenton DOE seeks to guarantee transgender students as much privacy as possible, including not requiring parents be notified if a student say, uses a different name in school or uses a different bathroom than the one assigned to their gender.

After it sued Middletown, the AG later said in court the policy was "guidance" and not mandatory.

Since then, dozens of other school districts across the state have simply stopped following Policy 5657 — without being sued by the state of New Jersey.

Capone and Tobacco say that's why the state's lawsuit against Middletown was unfair.

Some NJ School Boards: Strauss Esmay Gave Wrong Info. On Trans Policy