Colorado law allows students to change “chosen names” without parental input

After Colorado’s legislature recently turned parental rights on its ear in adopting House Bill 24-1039, Governor Jared S. Polis signed it into law on April 29, 2024. This bill requires officials in public schools, including charters, to call students by their “chosen name” without any notification of parents while ignoring the rights of educators who may object on religious grounds. The “chosen name,” according to the Bill, “means an individual’s innate sense of the individual’s own gender, which may or may not correspond with the individual’s sex assigned at birth.”

Not surprisingly, within days, supporters of parental rights began efforts to place Initiative 142 on the November ballot requiring parental notification if children use different names at school. Before the initiative can be added to the ballot, proponents must gather 124,238 signatures by August 5. Litigation will likely soon challenge this law’s having ignored the rights of both parents and educators.

Advancing a radical ideology that excludes parents from significant decisions impacting the lives of their children, House Bill 24-1039 requires public educators, including in charter schools, to address transgender students by their chosen names in school and during extracurricular activities. Staff members who knowingly or intentionally use names other than those students choose or knowingly or intentionally avoid or refuse to do so can face discrimination charges and unspecified penalties.

House Bill 24-1039 also directs school boards to adopt and implement written policies outlining how they will honor student requests to use their chosen names. Policies may include processes for including names in official records consistent with the federal Family Educational Rights and Privacy Act (FERPA). This sets up conflict because FERPA grants exclusive control to parents over the files of the children until they reach their eighteenth birthdays, at which time they have sole access to their records. The Colorado law does not specify how boards or individuals who ignore its dictates are to be handled.

Supporters of House Bill 24-1039 argue they seek to protect the well-being of students identifying as transgender who experience abuse at greater rates than their peers amid proponents’ fears some are not accepted at home and/or in school. The law’s purported good intentions aside, it is problematic for two primary reasons. First, it completely ignores parental legal rights the Supreme Court eloquently acknowledged almost a century ago in 1925’s Pierce v. Society of Sisters: “those who nurture [children] and direct [their] destin[ies] have the right, coupled with the high duty, to recognize and prepare [them] for additional obligations.” Second, the law likely violates the First Amendment religion and free speech rights of educators by seeking to compel them to use names and perhaps pronouns for students inconsistent with their religious beliefs.

Of course, students experiencing gender dysphoria deserve to be treated with respect and care, such as having access to counseling for themselves and their parents to help them understand what they are going through. Still, caution is in order because most young people identifying as transgender accept their biological sexes by the time they reach adulthood. Colorado’s law oversteps the legitimate bounds of state oversight by allowing students who cannot vote, purchase alcohol or cigarettes, or enter contracts (let alone be charged with or found guilty of most crimes because they are minors), to make major changes in their lives without parental input over the potential long-term impact of actions they may not fully understand.

It is unclear what is to be gained by allowing minors, especially those under eighteen who lack control over their records under FERPA, to change their names at school without having to inform their parents. It is exactly at times such as these that students need parental support. By denying parents their rights to be know what is happening in the lives of their children, Colorado law prevents them from assisting their young to deal with gender dysphoria. Subject to whether Initiative 142 succeeds, this bill usurps parental authority, relegating them to secondary roles at best by destroying familial bonds, as public officials decide what is best for students to whom they are unrelated.

Second, and equally as problematic, House Bill 24-1039 may force educators to violate their First Amendment rights to freedom of religion and speech by ordering them to refer to students with gender dysphoria by the names and/or pronouns they select. While the Supreme Court has invalidated compelled speech forcing individuals to communicate messages with which they disagree, lower courts have reached mixed results when dealing with name and pronoun use in educational contexts.

In a dispute from Ohio reaching the Sixth Circuit and one from the Supreme Court of Virginia, appellate panels agreed that officials cannot require educators to address students using pronouns or names inconsistent with sexes at birth if doing so violates their religious beliefs because this would have been unconstitutional compelled speech. Conversely, a federal trial court Indiana decreed that a school board in Indiana did not have to accommodate the beliefs of a teacher whose faith prevented him from referring to students using names and/or pronouns conflicting with to their birth sexes because this would have subjected it to an undue hardship.

Hopefully the courts and state governments will protect the freedom of religion and speech rights of educators to not be forced to communicate in manners incompatible with their faiths.

Considering that 2023 test results from Colorado revealed that only 43.7% of children read and write on grade level while 32.9% meet or exceed expectations in mathematics even as minority children had even lower scores, is it asking too much for public officials to focus on student achievement rather than engage in social engineering by usurping parental authority to direct the upbringing of their young? Perhaps public officials in Colorado and elsewhere can return to concentrating on student learning rather than creating a brave new ideological world that excludes parents from the lives of their children.