Public schools’ ability to keep a student’s gender identity private from their parents hangs on whether the First Circuit revives two parents’ lawsuit over a teacher’s failure to notify them that their child began identifying as genderqueer.
Stephen Foote and Marissa Silvestri claim the Ludlow, Massachusetts School Committee unconstitutionally hid that teachers were providing “mental health care” by affirming their 11-year-old child’s gender identity. They had a right to be informed of their child’s request to use new pronouns, the parents argue.
The US Court of Appeals for the First Circuit will hear oral arguments Wednesday. It will likely be the highest court to address the merits of an argument bubbling up in courts around the country—whether parents’ long-recognized constitutional right to direct the upbringing of their child applies to what pronouns they use at school.
LGBTQ+ and parental rights advocates say the issue is ripe for a circuit split and US Supreme Court intervention.
The Fourth Circuit threw out a related lawsuit in August over standing, and the Eleventh Circuit is considering another similar challenge brought by parents who are represented by the same parental rights law firm working on the Ludlow case. Meanwhile, some states have tried to block school policies requiring educators to out students to their parents.
“We need the courts to give a clear guideline to schools and parents” on how far parental rights extend, said Mary McAlister, senior litigation counsel with the Child & Parental Rights Campaign, who represents the parents in the First and Eleventh Circuit cases.
LBGTQ+ advocates say policies requiring schools to out students to their parents could bring those students harm, impeding schools’ obligation to “give students the opportunity to come to school and to be who they are,” which is “necessary for schools to accomplish their objectives,” said Chris Erchull, an attorney for GLBTQ Legal Advocates & Defenders.
The case has elicited amicus briefs from coalitions of states on both sides of the issue—the Alliance Defending Freedom, and the ACLU. The US District Court for the District of Massachusetts took the school district’s side in December 2022 and dismissed the case.
Health Treatment or Courtesy?
The parents claim the school violated a Massachusetts law, typically applied in health-care settings, requiring parental consent for medical treatment of minors including mental health treatment.
The school deliberately concealed from Foote and Silvestri “that their minor children are receiving mental health care, in the form of social transitioning to a discordant gender identity, at school,” they said in a brief.
Being transgender “is not a mental health condition,” the school district responded in its brief.
District Court Judge Mark Mastroianni found that the parents “have not alleged Defendants’ actions were undertaken as part of a treatment plan for gender dysphoria or explained how referring to a person by their preferred name and pronouns, which requires no special training or skill, has clinical significance when there is no treatment plan or diagnosis in place.”
“Addressing a person using their preferred name and pronouns simply accords the person the basic level of respect expected in a civil society,” Mastroianni wrote in his opinion.
‘Shock the Conscience’
The US Supreme Court’s most recent significant ruling on parental rights was in Troxel v. Granville (2000), McAlister said. The justices held that the Fourteenth Amendment protects parents’ fundamental right to make decisions about the care, custody, and control of their children.
To prove the state violated that right, Foote and Silvestri need to “allege facts so extreme and egregious as to shock the contemporary conscience,” and they must establish “that a protected right was offended” by the state’s conduct, according to the district court opinion. The court was not convinced by the parents’ argument that keeping information about a student’s gender identity from them shocks the conscience.
Since the school’s recognition of the student’s gender identity was mandatory under Massachusetts’ anti-discrimination law for public schools, “none of the conduct” the parents allege meets the bar of shocking the conscience, the school district said in its brief.
McAlister argues the “shock the conscience” test—in use since the 1950s and generally applied to excessive force cases—was misused by Mastroianni. They say it was designed for figuring out when a plaintiff can bring a due process challenge in a “life or death situation” like a police officer trying to decide whether or not to shoot someone pointing a gun at them.
“If they had time to think about what they were doing, then the shock the conscience standard should not apply,” she said.
Foote and Silvestri argue that they should be able to bring their substantive due process claim based simply on the state’s interference with the constitutionally protected parent-child relationship. They don’t need to pass a “shock the conscience” test, they said.
Slippery Slope?
If the First Circuit takes the parents’ side, it would be the first time a court has ever recognized a constitutional right that puts schools “in the position of outing transgender and gender nonconforming students to their parents,” Erchull said.
The ACLU said in a brief such a decision could embolden parents to try to dictate other aspects of their child’s education and burden schools with enforcing their values, such as requiring schools to report to parents whether students are wearing religious head coverings in accordance with parental wishes.
If the First Circuit agrees with the school, it would be an endorsement that “school committees can disregard state law, administrative guidance, and parents’ fundamental constitutional rights with impunity provided they do so in a way that is not ‘extreme’ or ‘egregious’ in the eyes of the court,” the parents said in a brief.
“No parent expects those administrators and teachers to actively encourage their children to conceal important personal information from them,” a coalition of conservative and religious groups wrote in a separate brief. “Should schools conceal poor academic performance from parents? Depression? Sexual activity? Drug use?”
The case is Foote v. Ludlow School Committee, 1st Cir., No. 23-1069, oral argument 9/13/23.
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