Federal Court Rules Schools Can Hide Children's Gender Transitions

The U.S. appellate court system has largely avoided debating the contentious issue of parental rights as it relates to children's gender transition efforts in schools -- until now.

In a unanimous decision published late last month, the U.S. Court of Appeals for the First District issued a ruling in Foote v. Ludlow School Committee, a case centered on a Massachusetts middle school facilitating a student's social gender transition while keeping the transition a secret from the student's parents. Addressing the merits, the court dismissed the case, writing that "parental rights are not unlimited. Parents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school."

According to the court's background summary, the case originated with a student at Baird Middle School in Ludlow. The 11-year-old student, who is not named in court documents but is identified as biologically female, began a social gender transition at school in 2020, after her school computer account began generating "unsolicited LGBTQ-themed video suggestions" for her. By the end of the year, the student confided in a teacher that she felt "depressed" and was "struggling with insecurity, low self-esteem, poor self-image, and a perceived lack of popularity."

Initially, school administrators contacted the student's parents, Stephen Foote and Marissa Silvestri, to alert them to their daughter's depression and possible mental health struggles. Foote and Silvestri thanked the school administrators and, in an email to the school principal, shared that they had sought professional help for their daughter. The parents added, "With that being said, we request that you do not have any private conversations with the student in regards to this matter. Please allow us to address this as a family and with the proper professionals."

Just a few months later, however, the student told her school counselor that she now identified as "genderqueer" and asked to be called by a new name and new pronouns. Since the student said that she had not yet shared this new "identity" with her parents, the school counselor alerted teachers and staff that they ought to address the student by her new name and pronouns at school but to refer to her by her given name and biological pronouns when talking to the student's parents. 

The school librarian also began conducting "one-on-one" meetings with the student and "provided" her with "LGBTQ-related resources." Additionally, the student was informed that she could now use the bathroom of her choice.

When the student's parents discovered the following month that the school had ignored their request not to have "any private conversations" with their daughter on the subject, school Superintendent Todd Gazda said that he wanted the school to be a place where children could "'express who they are' despite parents' wishes to the contrary." School administrators and teachers continued to refer to the student by her new name and pronouns and the school counselor even discussed the student's gender transition with her via text and online chat messages. 

The girl's parents claimed that the school's handling of their daughter's case amounted to a "psychosocial" intervention and that "social transitioning" is "recognized as a medical/mental health treatment for children with gender dysphoria."

Foote and Silvestri finally sued the school, the school district and a number of school administrators and officials, alleging that their conduct had "restricted [Foote's and Silvestri's] fundamental parental rights protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution..." A U.S. District Court dismissed the parents' case for "failure to state a claim," concluding that the parents had "failed to allege that [the school's] conduct involved medical treatment" and "had not alleged the sort of 'conscience-shocking' conduct required by Supreme Court precedent to establish a substantive due process violation."

The parents appealed the district court's decision, but the First Circuit Court of Appeals also dismissed the case. The court acknowledged that the U.S. Constitution does not allow states to "deprive any person of life, liberty, or property, without due process of law," and that the "Supreme Court has held for nearly one hundred years that the Due Process Clause's explicit promise of 'liberty' ensures certain fundamental rights," including "the right of parents to make decisions concerning 'the care, custody, and control of their children.'" However, the court ultimately concluded that "parental rights are not unlimited. Parents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school."

"As per our understanding of Supreme Court precedent, our pluralistic society assigns those curricular and administrative decisions to the expertise of school officials, charged with the responsibility of educating children," the court continued. "And the Protocol of nondisclosure as to a student's at-school gender expression without the student's consent does not restrict parental rights in a way courts have recognized as a violation of the guarantees of substantive due process."

The court ruled that Foote and Silvestri "have failed to state a claim" that the school's handling of their daughter's case "violated their constitutional right to direct the upbringing of their child. We therefore affirm the district court's grant of the motion to dismiss." Since the opinion was issued per curiam (or by unanimous agreement), there was no dissenting opinion.

In comments to The Washington Stand, Meg Kilgannon, Senior Fellow for Education Studies at Family Research Council, bluntly stated, "Not wanting your child to be told they could have been born in the wrong body is not a 'preferred education experience,' and it is not at all unreasonable. Parents are the primary educators of their children. We should be very concerned that a court can find a way to rule otherwise." She warned:

"Left-wing and LGBTQ+ legal nonprofits have made a concerted effort to educate lawyers and judges about their warped and dangerous theories of the human person and the law. Conservative and religious liberty legal groups need to make exponentially larger investments in these kinds of trainings to defend the family and the dignity of the human person. If we do not, we will get more of the same. Our children are too precious to suffer the consequences of our failure to act."

Numerous similar cases have come before U.S. district courts over the past several years. In some cases, the district courts have sided with the parents, concluding that they have a constitutional right to know whether or not their children are being subjected to gender transition interventions at school. In other cases, the district courts have sided with the schools and school districts. 

When the parents inevitably appeal, the circuit courts have generally avoided issuing judgment on the merits of the cases, instead citing a lack of standing in dismissing the cases, as happened in both Parents v. Montgomery County Board of Education and Parents Protecting Our Children v. Eau Claire Area School District. The case of Foote v. Ludlow School Committee is the first instance of a circuit court issuing judgment on the merits of such a case.

U.S. Supreme Court Justices Samuel Alito and Clarence Thomas have both disagreed with the decision to dismiss such cases for lack of standing. When the Supreme Court declined late last year to hear Parents v. Montgomery County Board of Education, Alito and Thomas dissented, writing, "This case presents a question of great and growing national importance: whether a public school district violates parents' 'fundamental constitutional right to make decisions concerning the rearing of' their children ... when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process." The justices added, "The lower courts never reached the merits, however, because they concluded that petitioners lacked standing."

Alito and Thomas observed that the appellate courts typically argue that parents lack standing since they cannot "show" that their children are being secretly transitioned. "But the challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the 'identities' of their children, especially if the school believes that the parents would not support what the school thinks is appropriate," the two veteran jurists wrote. 

They added, "Thus, the parents' fear that the school district might make decisions for their children without their knowledge and consent is not 'speculative.'" Alito urged his fellow justices to take up the case and clarify some crucial constitutional questions, writing, "I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions."

According to a report compiled and updated by Parents Defending Education, nearly 1,200 school districts in the U.S. -- comprising 21,193 schools and responsible for over 12.3 million children -- currently have policies in place prohibiting faculty and staff from sharing or discussing students' social gender transition efforts with parents. Half of those school districts are located in California.

Originally published at The Washington Stand