Middletown's Transgender Policy Could Harm Kids, May Be Illegal, 2nd Court Says

MIDDLETOWN, NJ — Three judges from the New Jersey Court of Appeals agreed with a Monmouth County Superior Court judge that Middletown's transgender student policy is dangerous, could harm youth and may also be illegal.

In August 2023, Monmouth County Superior Court Judge David Bauman — appointed by Gov. Chris Christie — placed an injunction (a legal block) on Middletown's transgender student policy, which sought to require Middletown teachers inform parents if a child was using different names, pronouns or bathrooms in school.

Middletown school board vice president Jacqueline Tobacco said her policy (she and Board lawyer Bruce Padula wrote it) was necessary to keep parents informed. The district was having to white out students' preferred names or pronouns on schoolwork sent home to parents, she previously said.

At the time, Bauman said he had a number of concerns with the policy, including that it may "out" transgender/LGBTQ+ kids to their parents; put the teens at risk of being harmed by their parents or harming themselves (such as suicide), and that the policy may violate New Jersey's Law Against Discrimination. Transgender students or students who may be questioning their gender/sexuality are a protected class in New Jersey.

“The statistical possibility that even one transgender student affected by (this) should run away from home, or attempt or commit suicide, is sufficient to tip the balance of equities in favor of the state,” Bauman wrote in 2023.

Padula appealed Bauman's decision.

The case went to the NJ Court of Appeals. On Monday, in this decision, three judges on an appellate court panel said they agreed with nearly all the initial concerns Bauman had.

First, Middletown's policy may be illegal. On page 11, the Appeals Court wrote:

"Here, only students who identify as transgender are singled out for mandatory parental notification, the [Attorney General] has demonstrated a reasonable probability of success on the merits of its claim that the Amended Policies effect differential treatment of members of a protected class, in violation of the Law Against Discrimination."

Secondly, the Appeals Court said Bauman was correct to be worried that transgender or LGBTQ+ students could be harmed if the policy was carried out. On page 22, the judges wrote:

"The risks of harm the trial court (Monmouth County Superior Court) identified included 'mental health issues, suicide, illicit drug dependency and infliction ofphysical or emotional harm by immediate family members.' We discern no abuse of discretion in the trial court's determination concerning irreparable harm."

Finally, the Appeals Court rejected Padula's argument that the district was violating parents' rights under the 14th Amendment. Padula argued the state of New Jersey was violating parents' rights to privately raise their children without government intrusion.

"Those arguments, for the reasons discussed below, are unpersuasive," wrote the Appeals Court on page 24. "A review of the record confirms that the injunctions do not infringe on parents' fundamental rights under the Fourteenth Amendment."

Yet Tobacco and Middletown school board president Frank Capone are claiming victory. Why?

One part of Monday's ruling said Middletown is now free to repeal both the state's suggested transgender policy (Policy 5657), and its own policy Tobacco/Padula wrote in response.

The BOE will vote Thursday night to remove both policies entirely from the books.

On her X account, Tobacco called Monday's ruling "a humiliating loss" for the New Jersey Attorney General.

"This represents a monumental win for parental rights," Capone tweeted in part Tuesday night. "The opinion clearly states that it is not a decision on the merits of the case. In fact, we were denied the chance to address this issue on its merits because the plaintiffs never presented it for a hearing in DCR (Division of Civil Rights) (18 months and still counting). Instead, they engaged in tactics to delay or avoid a hearing that would convert their temporary injunction into a permanent one — shame on the AG, who apparently likes to misinterpret the appellate court's actual opinion."

Lauren Albrecht, director of advocacy at Garden State Equality, called Tobacco and Capone "delusional." Her group supports LGBTQ+ rights in New Jersey, and filed a legal brief in support of the state's lawsuit against Middletown.

"You can say whatever you want on the Internet," said Albrecht. "They have a major interest to declare victory because they spent so much time drawing negative attention to the school district, and spent so much taxpayer money fighting the state on this. They have a vested interest to say they won."

And it's not just Capone/Tobacco. High-ranking Republicans in New Jersey are taking Monday's appellate court ruling as a win, most notably Jack Ciattarelli, running for a third time to be governor.

"I was proud to stand with the Middletown BOE & many others when this suit was beginning and am glad to see a big win today for parental rights," Ciattarelli tweeted this week.

"Jack's running for governor," opined Albrecht. "He has a vested interest in making himself look more extreme than Bill Spadea and more extreme than John Bramnick (two other men running in the Republican primary.) But Jack's making a mistake by using this issue. Exit polls have found people don't get out to vote on trans issues. They are making a campaign out of one percent of children. If the Middletown voters are sick of this, they should vote for change. Otherwise, we have to assume they co-signed this."

The Attorney General has not dropped his initial lawsuit against the Middletown school board. It's still proceeding before the New Jersey Division on Civil Rights. Tobacco said she hopes Platkin will drop his lawsuit after the BOE votes to remove both policies Thursday night.

"We don't need to claim victory," said Albrecht. "If your kid doesn't tell you they're using different pronouns at school, there's a reason for that. And it's probably something you should look inwardly about."

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

There Will Be A Special Middletown BOE Meeting Thursday