Should I use a transgender student’s preferred name or legal name when writing for the school newspaper?

Here’s the lowdown on law. At the federal level, the Department of Justice and the Department of Education work to prevent discrimination in education through Title IX. States have their own protections too, but it varies, so we’ll stick to the federal law here.  

Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” There’s no requirement for any student to have a medical reason or treatment to be treated consistent with their gender identity, and any recipient of federal funding (such as your high school) cannot force someone to conform to masculine or feminine identities. 

But, that’s not the only federal law involved here! There’s another law called the Family Educational and Privacy Rights Act (FERPA). Under FERPA, students and their families can inspect school records and amend them if the records are inaccurate, misleading, or otherwise in violation of privacy rights. So, parents and students over the age of 18 can amend school records to accurately reflect gender identity, and they have the right to protect the privacy of student information, such as grades. But (and this is an important ‘but’), schools can disclose “directory information,” which can include names. However, FERPA gives students and parents the right to refuse the publishing of such information.

Let’s jump back to Kiara and student publications. If Kiara wants to have her preferred name published in the yearbook, she can. A school cannot force Kiara to go by Kevin because of Title IX, and FERPA does not apply to this particular scenario because she is disclosing the information herself. 

What about privacy rights? How do those apply?

Under state law, people generally have the right against public disclosure of private facts. To determine whether this right has been violated, we’ll look at three factors. First, whether it concerns an individual’s private life and must not be a matter of public record or otherwise known to the public. Second, the disclosure is highly offensive to the average person. And third, whether it is of legitimate concern to the public or not. 

Let’s start with the scenario where Kiara asks for her preferred name to be printed in a publication. If she actively requests that her friends, teachers, and peers call her Kiara, then this is not a public disclosure of private facts. But, it is different when students are outed for their LGBTQ+ status. If her status was a secret, then a publication of the preferred name would be a public disclosure of private facts and would be an issue. 

Kiara’s name and pronouns are not generally offensive to the average person. An ordinary reader might not even know the circumstances surrounding her name and pronouns. By the time the content of a publication reaches the printer, it has likely gone through several rounds of edits and the article she is in is likely to be of an appropriate subject matter for the publication, too. So, the second factor probably will not be an issue in the scenario of Kiara wanting her preferred name to be published. 

Finally, we have to look at whether the disclosure was of legitimate concern to the public. If Kiara was interviewed for the student newspaper and her preferred name and pronouns were used, her comments are likely of interest to the school. Additionally, the reference to her preferred name and pronouns, as an involved student being interviewed, are of concern to the school too. Therefore, using her preferred name is not going to get a student publication in trouble if she requests it, and there are laws protecting her ability to use that name and pronoun. So, no, there’s no requirement that a student publication use a legal name if the student prefers otherwise. 

You mentioned the “heckler’s veto” -- what is that?

The heckler’s veto is a concept in First Amendment law that would allow a government institution to shut down speech in anticipation of backlash. Here, it would mean that the high school could make the yearbook staff use Kiara’s legal name rather than her preferred name because it fears backlash from the public, either against the school or against the student. However, we don’t think this would hold up. Using the heckler’s veto to prevent Kiara from using her preferred name would amount to a violation of her right to free speech. Just because someone in the community might react negatively to Kiara’s preferred name does not give the school the right to shut down her right to free speech. 

The freedom to self-identify is an essential component of the freedom of speech. Allowing Kiara to use her preferred name in the yearbook is symbolic speech and is protected under the First Amendment. By coming out as transgender, she is standing up for herself and her right to self-identify. 

What else should we know about publishing preferred names?

If privacy lawsuits are a concern, student journalists can obtain written consent from students or, if they are under 18, the students’ parents to use preferred names and pronouns and to appear in articles or other publications.

Student welfare is also incredibly important in this situation. Schools can shut down speech if they reasonably believe it has caused a substantial disruption to the school environment, or if officials can forecast a substantial disruption based on evidence of a similar disruption with past incidents. However, we think the use of a preferred name in a yearbook is unlikely to cause a substantial disruption to the school. (To give you an idea of what a “substantial disruption” is, we mean a disruption that’s so distracting that students cannot learn and teachers cannot teach. It’s more than hallway murmurs.)

Beyond the legal argument, studies demonstrate that there is a strong argument in favor of using preferred names and pronouns. Using Kiara’s legal name rather than her preferred name would negatively impact her welfare, and maintaining student welfare is important to the educational environment. Coming out publicly is an important step in the transitioning process, and this process can be especially difficult as a young high schooler who is subject to social pressures and youthful ignorance. By using Kiara’s legal name instead of her preferred name, a student publication would effectively be denying her new identity and would make the process more difficult for her.