N.J. is discussing a proposal to separate students based on gender identity in sex education class

New Jersey may end a once-common practice of separating students by their sex assigned at birth when schools broach the topic of sex education.

The state Board of Education is weighing a proposal to allow students to be placed in sex education class based on their gender identity. Students would be allowed to self-identify.

Specifically, it would amend a state regulation that requires “portions of classes that deal exclusively with human sexuality be conducted in separate developmentally appropriate sessions for male and female students, provided the course content for such separately conducted sessions is the same.” The amended version would remove “for male and female students” and add “based on gender identity.”

The proposal sparked a heated discussion when it was introduced at a December meeting by the state Department of Education. It is listed on the agenda for the board’s monthly meeting Wednesday.

» READ MORE: New sex ed standards are coming to N.J. schools this fall. Here’s how some districts are preparing.

“I don’t know that we have to pick gender identity vs. sex,” said state board member Andrew J. Mulvihill. “They’re both protected classes.”

Acting state Education Commissioner Angelica Allen-McMillan said if the measure is adopted, it would be left for districts to determine how to implement the regulations. For example, any student who identifies as female could be permitted to attend a health class focused on female sexuality.

“We may agree to disagree,” she told the board. “It is what we believe is the best direction and course of action to represent our students in the 21st century.”

Allen-McMillan reportedly could be on her way out as the state education head, according to an article by NJ Education Report, which could put the proposal in jeopardy. She was nominated for the post in 2020 by Gov. Phil Murphy and has not been confirmed. The article cited Murphy’s displeasure with the commissioner’s performance during the pandemic and most recently the delay in releasing long-awaited state standardized test scores.

Under Allen-McMillan’s tenure, the department sparked controversy when it announced changes last year in its sex education curriculum that requires schools to introduce lessons that discuss gender identity by the end of second grade, puberty and masturbation by the end of fifth grade, and understanding types of intercourse by eighth grade.

» READ MORE: Revised sex-education standards are coming to N.J. schools in September. Here’s why they’re controversial

The gender identity proposal seemed to catch state board members off guard when it was raised last month at the tail end of a lengthy meeting focused primarily on test scores and graduation exam results.

Experts say separating classes with instructions labeled for “boys” or “girls” unfairly excludes transgender and nonbinary students. They should not be forced to out themselves or opt out of class, they say.

The commissioner said the regulation must be amended to comply with antidiscrimination laws. Mulvihill said it was a policy change, not a legal decision.

» READ MORE: LGBTQ education is now mandatory in N.J. schools. Here’s how teachers are preparing.

Mulvihill expressed concern that the state was picking the rights of a “child with gender dysphoria” over other students. The comments drew gasps from some board members. One deemed the comments inappropriate and told Mulvihill: “You’re not a doctor. You’re diagnosing people you don’t know.”

“I have to back away from this discussion with statements being made,” Allen-McMillan said.

Mulvihill later apologized for his comments. He said he had received letters from numerous constituents opposing the proposed regulation.

Said board member Joe Ricca: “My heart breaks for parents and guardians or transgender students who are listening to this conversation and if they are feeling like they are less than. Just because somebody does not conform to what we think doesn’t mean that they don’t still deserve the same rights and access that everyone else does.”

State education officials did not respond to queries seeking comment.

In Pennsylvania, the ACLU has filed a complaint against the Central Bucks School District for a number of policies and practices, including its shift to online sex education after facing blowback for instructing transgender and nonbinary students to attend classes corresponding with their sex assigned at birth.

At the same time, many schools no longer separate students by gender when giving instruction about puberty, typically around sixth or seventh grades. In those cases, girls may learn about their menstrual cycle, while boys are taught about physical changes in their bodies.

Karen Borrelli, a health and physical education teacher in Camden for more than 30 years, said she scrapped that model years ago out of necessity when she was the only health teacher. She said provisions under Title IX mandate a more inclusive approach.

“It’s a gender-neutral instruction piece if it’s done right,” said Borrelli, who teaches at the Charles E. Brimm Medical Arts High School. “I would never ever think about separating anybody.”