Today a New Jersey Superior Court judge expressed doubts about the legitimacy of a new parent notification policy in Hanover Public Schools District that requires school staff to tell parents if their child is gay or questioning their gender identity.

During a hearing today the attorney for the School Board, Matthew Giacobbe, argued that the case is about parental rights, which are guaranteed by the 14th Amendment of the U.S. Constitution. However, Judge Stuart Minkowitz responded that the district was creating a “special class” of students who would be subject to notification—the district policy specifies students’ “sexual orientation, transitioning, gender identity or expression”—and not other students.

“You’re identifying a protected class … for special treatment” by treating gay students differently than heterosexual students, the Judge Minkowitz said to Giacobbe. He also wondered hypothetically whether a policy that identified students by race, religion or national origin would be constitutional. (It wouldn’t be.)

From InsiderNJ:

“The judge, who questioned Giacobbe extensively, also seemed to be uncertain how the policy would work. He said it seemed like staff would have no discretion and he raised the possibility of teachers and others making a mistake in identifying a student’s sexuality. He also observed that the school board’s court filings failed to address any harm students could incur under the new policy.”

Two weeks ago when the Hanover Board of Education approved the parent notification policy, the Murphy Administration’s Attorney General got a preliminary injunction that put the policy on hold. AG Matthew J. Platkin argued the policy has a disparate impact on LGBTQ+ youth, requiring school staff to “out” LGBTQ+ youth to their parents and exposing them to potential physical and emotional harm. The hearing today was to determine if the injunction would be permanent. Judge Minkowitz delayed that ruling while the State and the school board attempt to find a compromise.

In addition, the State Division of Civil Rights is preparing to issue a ruling. “Our state civil rights laws are clear: New Jersey does not tolerate discrimination on the basis of sexual orientation or gender identity or expression,” said Sundeep Iyer, Director of the Division on Civil Rights. “We will continue do everything in our power to enforce the robust protections our laws provide and to ensure that LGBTQ+ youth remain safe in our schools.”