Student privacy vs. parental rights

Counselors sometimes find themselves between a rock and a hard place, especially when it comes to children.

On one side is the counselor’s duty of confidentiality and client privacy, without which trust is impossible. Why seek help from a counselor, especially on the toughest issues, when anything you say could be broadcast without notice or permission?

On the other side is a parent’s right to know what’s going on with their minor child. It’s hard to exercise the responsibilities of parenting without full and complete information. And of course we worry about our kids.

School counselors, perhaps more than any other kind, teeter on that precarious wall between. Not an enviable position.

According to the American School Counselor Association, the duties of these masters-degreed (or more), licensed counselors go beyond academics. They also act as short-term therapists on the frontline for children in crisis, such as family death or divorce, or — as recent headlines illustrated — deeply personal issues, such as gender identity explorations, feelings of suicide, and other crescendo moments.

When counselors must choose between student privacy and parent knowledge, in addition to any school policies the ASCA and state boards offer some legal and ethical guidance. But overall, even they suggest it’s a case-by-case analysis.

First, a few definitions. Note, gender identity is not the same as sexual orientation. Sexual orientation is about attraction to others, whereas gender identity is about how we see ourselves. As defined in the Idaho School Boards Association Coeur d’Alene School District’s Gender Identity Policy 328, mirrored in the Coeur d’Alene School District transgender policy adopted in 2014:

“Gender identity” means a person's deeply felt internal sense of their own gender.

“Gender expression” is how a person expresses their gender to others, often through behavior, clothing, hairstyles, activities, voice or mannerism.

“Transgender” (adjective) describes a person whose gender identity or expression is different from that traditionally associated with the person's sex assigned at birth.

Citing higher assault and bullying incidences against such children, the ASCA statement on transgender or non-conforming students states counselors should “recognize all students have the right to be treated equally and fairly with dignity and respect as unique individuals, free from discrimination, harassment and bullying based on their real or perceived gender identity and gender expression” and “work to safeguard the well-being of transgender and gender-nonconforming youth.”

The school counselor’s role, says the ASCA, is to “recognize that the responsibility for determining a student’s gender identity rests with the student” rather than outside people or medical factors. Then again, supporting such students does include the parent at some point as part of a “student-centered approach.” The ASCA guidance also says parents have a right to see case notes.

Sharing information with parents and perhaps other school staff is “important when a student’s safety is in question” (e.g., sexual behaviors, self-harm, drug use or threats to self or others). But in a transgender position statement adopted in 2016 the ASCA specifically addressed privacy again, stating, “Transgender and gender-nonconforming students have the right to decide when, with whom and to what extent to share private information.”

That’s similar to the privacy section of the Coeur d’Alene School District’s transgender policy:

“Except as set forth herein, school personnel should not disclose information that may reveal a student’s transgender status … Disclosing confidential student information to other employees, students, parents, or other third parties may violate privacy laws, including but not limited to FERPA (the Family Education Rights Privacy Act).

“Transgender students have the ability, as do all students, to discuss and express their gender identity and expression openly and decide when, with whom, and how much of their private information to share with others. Schools should work closely with the student and family in devising an appropriate plan regarding the confidentiality of the student’s transgender status that works for the student, their family and the school. Privacy considerations may also vary with the age of the student.”

State law seems to lean to the side of privacy. Idaho Code 33-1212 generally provides counseling at public schools should be “flexible and responsive." A statement by the Coeur d’Alene School District noted state law does not require a school counselor to report what’s said to parents, with certain exceptions in cases of abuse or neglect. On the other hand, expressed district practice is to work with parents on the goals of counseling.

There’s that rock and a hard place again. Parents have the right to know, and students have the right to decide when and who will know. When that extends to parents, and exactly how age affects both are likely as inexact as the art of counseling itself.

Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.