*Katie King
- Records Protections Under the Family Educational Rights and Privacy Act
The Family Educational Rights and Privacy Act (FERPA) permits parents to access their children’s education records.[1] Education records are materials “maintained by an educational agency or institution” that “contain information directly related to a student.”[2] Most education records are accessible to parents, with narrow exceptions.[3] One pertinent exception is records that are kept by their author for use as a personal memory aid and are not accessible to others.[4] This may include teacher/administrative documents noting a student’s preferred name, pronouns, or gender identity so long as the record meets the exception’s criteria.[5] Fifteen states require varying degrees of disclosure to parents when their student requests the use of a different name or pronoun.[6] The Department of Education (DOE) asserts that FERPA prohibits schools from restricting parents’ access to records referencing a student’s gender transition.[7]
- The Scope of Transgender Identities
Transgender is a general term for an individual whose expression of gender “does not conform to that typically associated with the sex to which they were assigned at birth.”[8] Sex is the culmination of biological features including hormones, sexual and reproductive anatomy, and chromosomes.[9] Gender is based on the “roles, behaviors, activities, and attributes that a given society considers appropriate for boys and men or girls and women.”[10]
A study from Saint Louis University School of Medicine found that out of the study’s 155 transgender participants, a majority began questioning their gender identity on average between the ages of three and seven.[11] Approximately 724,000 children in the United States aged thirteen to seventeen identify as transgender, representing 3.3% of all individuals in that age demographic.[12] The same demographic represents 25.3% of the entire transgender population of the United States.[13]
- The Trump Administration’s Action on Gender Identity Disclosure Under FERPA, Oppositions Thereto, and Consequences for Non-Compliance
The Trump Administration asserts that “FERPA gives parents the right to access their children’s education records.”[14] Thus, “[p]olicies that instruct teachers, counselors, and other employees to hide a child’s ‘gender transition’ records from parents infringe on parents’ rights under FERPA.”[15] The Administration recently called upon educational agencies to “apply FERPA correctly to uphold, not thwart, parents’ rights” regarding “gender ideology.”[16] In early 2026, the DOE began a series of challenges by finding the California Department of Education in violation of FERPA for employing “tactics used to hide information from parents.”[17] Among these tactics were instituting the use of gender support plans and advocating for a student management software company to begin hiding student pronouns.[18] Likewise, in October 2026, the Department of Justice filed suit against Anne Arundel County Public Schools in Maryland, alleging violation of FERPA for directing staff to “solicit, document, and act upon a student’s self-identified name, pronouns, and gender identity without notifying parents.”[19] While California and Maryland are among the first states to face an official finding, other state education departments are under investigation.[20]
As a result of the DOE’s finding, the California Attorney General is seeking declaratory and injunctive relief in federal court to restrict the DOE’s enforcement of policies the Department claims FERPA mandates.[21] California contests the finding and notes in its complaint that it “need not be perfectly FERPA-compliant to avoid enforcement penalties.”[22] FERPA requires only that parents be allowed to inspect records upon request, not that schools proactively disclose information found in those records.[23] There is also no private right of action under FERPA, so parents cannot sue directly to enforce it.[24] One available penalty for FERPA violations, however, is the revocation of federal funding, a sanction the DOE has threatened but never imposed.[25]
- The End of Chevron Deference Post-Loper Bright
In 1984, the United States Supreme Court held in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. that an administrative agency’s interpretation of a statute may be entitled to deference when challenged.[26] Chevron established a two-step framework to review an agency’s construction of a statute: (1) Has Congress directly addressed the question now before the court?[27] (2) If not, is the administrative agency’s policy “based on a permissible construction of the statute?”[28] In 2024, Chevron was overturned by Loper Bright Enterprises v. Raimondo, when the Court held Chevron “to be fundamentally misguided.”[29] Now, courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”[30]
In the absence of mandatory deference, an administrative agency’s enforcement policies are subject to neutral statutory interpretation.[31] Had the DOE challenged school gender identity policies under FERPA prior to 2024, the DOE’s interpretation and enforcement actions would likely have been permissible, thus forcing states to comply.[32] However, post-Loper Bright, courts must simply employ independent statutory interpretation to “effectuate the will of Congress.”[33] If a court believes that the DOE has not engaged in reasoned decisionmaking as permitted by Congress, the court must correct the error.[34]
- Conclusion
As more educational agencies are challenged on their gender identity policies, lawsuits will make their way through federal courts.[35] Loper Bright provides little guidance beyond the principle of review with neutrality, thus each court’s interpretation of FERPA’s enforcement will inevitably be influenced by the leanings of the court.[36] The influx of federal lawsuits will likely result in circuit splits and eventually a grant of certiorari by the Supreme Court.[37] As the DOE continues to investigate possible FERPA violations regarding gender identity policies, outcomes will hinge on whether the accused educational agency immediately acquiesces to the enforcement action, or whether it refuses to comply, sparking more litigation.[38]
*Katie King is a second-year evening student at the University of Baltimore School of Law and a Staff Editor for the University of Baltimore Law Review. She serves as a Teaching Assistant for Introduction to Lawyering Skills, works as a full-time public service paralegal, and sits on the advisory board for Anne Arundel Community College’s Paralegal Studies program. Katie also holds a forty-hour mediation training certificate and is a member of the Women’s Bar Association of Maryland.
[1] 20 U.S.C. § 1232g(a)(1).
[2] Id. § 1232g(a)(4)(A).
[3] What Records Are Exempted from FERPA?, U.S. Dep’t of Educ., https://studentprivacy.ed.gov/faq/what-records-are-exempted-ferpa (last visited Aug. 30, 2026).
[4] Id.
[5] Id.; Privacy, Policy & Legality, Blurring the Binary (Sep. 2026), https://blurringthebinary.com/privacy%2C-policy%2C-legality.
[6] Equality Maps: Forced Outing of Transgender Students, Movement Advancement Project, https://mapresearch.org/equality-map/forced-outing-of-transgender-youth-in-schools/ (last visited Aug. 30, 2026).
[7] Press Release, U.S. Dep’t of Educ., Trump Administration Cracks Down on School Districts Secretly “Transitioning” Students and Hiding it from Parents (July 27, 2026), https://www.ed.gov/about/news/press-release/trump-administration-cracks-down-school-districts-secretly-transitioning-students-and-hiding-it-parents [hereinafter July Press Release].
[8] Understanding Transgender People, Gender Identity, and Gender Expression, Am. Psych. Ass’n. (July 8, 2026), https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression [https://perma.cc/5JZT-3CYR].
[9] Id.
[10] Id.
[11] Michael Zaliznyak et al., How Early in Life do Transgender Adults Begin to Experience Gender Dysphoria? Why this Matters for Patients, Providers, and for Our Healthcare System 2, 3 (2021) https://pmc.ncbi.nlm.nih.gov/articles/PMC8766261/pdf/main.pdf.
[12] Jody L. Herman & Andrew R. Flores, How Many Adults and Youth Identify as Transgender in The United States? 2 (2025) https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Pop-Update-Aug-2025.pdf.
[13] Id. at 7.
[14] Letter from Linda E. McMahon, U.S. Sec’y of Educ., to Educators (Mar. 28, 2025) (on file with author) [hereinafter Letter].
[15] July Press Release, supra note 7.
[16] Letter, supra note 14.
[17] Press Release, supra note 7; see generally Compl., California v. U.S. Dep’t of Educ., No. 3:26-cv-01259 (N.D. Cal. Feb. 11, 2026) [hereinafter Compl.] (informing the California State Superintendent of Public Instruction of the DOE’s findings in the investigation of California’s education records access policies).
[18] July Press Release, supra note 7.
[19] Press Release, U.S. Dep’t of Educ., Justice Department Sues to Stop Secret Gender Transitions at Anne Arundel County Public Schools (October 27, 2026), https://www.justice.gov/opa/pr/justice-department-sues-stop-secret-gender-transitions-anne-arundel-county-public-schools.
[20] July Press Release, supra note 7.
[21] Compl. at 23–24.
[22] Id. at 7.
[23] Cody Venzke, Reaffirming Privacy Obligations While Facing New Challenges: Guidance for States, Schools, and Universities, ACLU 19 (May 14, 2025), https://assets.aclu.org/live/uploads/2025/05/2025.05.15-FERPA-Guidance-v5b-1.pdf.
[24] See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002).
[25] FERPA: What it Means and How it Works, SPLC, https://splc.org/ferpa-what-it-means-and-how-it-works/ (last visited Aug. 30, 2026).
[26] Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
[27] Id. at 842–43.
[28] Id.
[29] Loper Bright Enters. v. Raimondo, 603 U.S. 369, 407 (2024).
[30] Id. at 412.
[31] See Dahlia Mignouna, Chy-Ching Huang & Kelsey Merrick, Loper Bright Overruled Chevron—Not Longstanding Tools of Statutory Interpretation, Tax L. Ctr. NYU L., (Apr. 2, 2026) https://taxlawcenter.org/blog/loper-bright-overruled-chevron-not-longstanding-tools-of-statutory-interpretation.
[32] See United States v. Miami Univ., 294 F.3d 797, 814 (2002) (discussing that the term “education records” is ambiguous, noting “[i]f the statute is silent or ambiguous with respect to the specific issue, this Court must defer to the agency’s interpretation as long as it is based on a permissible construction of the statute.”).
[33] Loper Bright Enters., 603 U.S. at 395.
[34] See id. (citing Michigan v. E.P.A., 576 U.S. 743, 750 (2015)).
[35] See discussion supra Parts III–IV.
[36] See also Alma Cohen & Rajeev H. Dehejia, Judges Judging Judges: Polarization in The U.S. Courts of Appeals 3, 27 (Nat’l Bureau of Econ. Rsch., Working Paper No, 32920, 2024) (evaluating an increase in the politicization of federal circuit courts and the long-term and widespread implications of partisanship on judicial decisions). See generally Circuit Courts in the Balance, Alliance for Just., https://afj.org/why-courts-matter/circuit-courts-in-the-balance/ (last visited Aug. 30, 2026) (showing the political leanings of federal circuit judges).
[37] See Kelsey Dallas, The Art of the Circuit Split: An Explainer, SCOTUSBlog (Feb. 17, 2026, at 09:30 ET), https://www.scotusblog.com/2026/02/the-art-of-the-circuit-split-an-explainer/ (explaining how pervasive circuit splits influence the Court’s decision to grant certiorari).
[38] See Compl., supra note 17, at 2–4 (detailing the history of the DOE’s investigation into California’s gender identity disclosure policies and California’s noncompliance with the DOE’s demand for “corrective actions.” Noting the DOE’s threat of termination of federal education funding in the amount of $4.9 billion dollars annually, leading California to seek declaratory and injunctive relief).
