Like others around the country, the Rockford, Michigan, Public School District requires parents’ permission for many things that affect their children’s safety, education, and personal well-being. But during the 2021–2022 school year, acting on nothing more than a seventh-grader’s e-mail to a school counselor, East Rockford Middle School personnel began treating the female student as a boy. They concealed the situation from the girl’s parents. Indeed, they altered school records that the parents might see and failed to disclose anything about this scheme even while communicating with them about other aspects of the girl’s mental health, well-being, and academic progress.REF

In August 2020, administrative staff in the Escondido, California, Union School District, adopted a similar policy. They claimed that a student’s “assertion” of “gender identity,” by itself, requires school personnel to “begin to treat the student immediately, consistently with that gender identity. The student’s assertion is enough.”REF Revealing a student’s “transgender status”REF to “individuals who do not have a legitimate need for the information”—including parents—is considered prohibited discrimination or harassment. Under the policy, “a student’s consent to reveal gender information is required, regardless of the age of the student.”

These are neither isolated incidents nor the random acts of a few rogue teachers or administrators. As of May 22, 2024, the database maintained by Parents Defending Education lists 1,062 public school districts in 38 states and the District of Columbia with written policies that authorize or require withholding gender-related information from parents. These districts include 18,658 schools attended by nearly 11 million students. This Legal Memorandum will identify the common features of school gender policies, outline the basis and substance of parents’ right to direct the upbringing and education of their children, and examine litigation alleging that these policies violate this right.

Definitions

No legal or policy area is more fraught with definitional and categorical confusion than gender ideology. Trying to make some sense out of it is beyond the scope of this Legal Memorandum. Nevertheless, for purposes of this analysis, a few key terms that often appear in the school gender policies examined below must be defined.

Sex is an objective term, referring to the biological fact that a human being is either male or female. The American Medical Association defines sex as “the classification of living things as male or female” and is biological in nature.REF Similarly, the World Health Organization defines it as “genetic/physiological or biological characteristics of a person which indicates whether one is female or male.”REF The school policies examined here reflect the almost complete abandonment of sex as an objective, or even relevant, category. In fact, these policies refer to sex only in phrases such as “sex assigned at birth.”REF

Gender has a long history in the English language, including as a synonym for sex as defined above. In the mid-20th century, however, some theorists began to separate the terms, using gender in a much broader and subjective sense to refer to the social and psychological aspects of sex such as stereotypes and personal experiences.REF In a 2001 report, the Institute of Medicine recommended this separation, with the term sex “used as a classification, generally as male and female, according to the reproductive organs and functions that derive from the chromosomal component.” Gender, the report said, “should be used to refer to a person’s self-representation as male or female.”REF

Gender identity, the term at the heart of school gender policies, is inherently subjective and entirely internal. The Human Rights Campaign defines it as “[o]ne’s innermost concept of self as male, female, a blend of both or neither.”REF Similarly, National Public Radio defines it as “one’s own internal sense of self and their gender, whether that is man, or woman, neither or both.”REF Gender identity, the National Institutes of Health explains, “is not necessarily visible to others”REF but is wholly determined by how individuals perceive and interpret their “internal sense.” As such, gender identity, unlike sex, can change at any time and in whatever direction the individual desires. Transgender refers to a “gender identity [that] differs from the sex the person was identified as having at birth.”REF

Finally, gender dysphoria is a clinically diagnosed mental disorder. In the current edition of the Diagnostic and Statistical Manual of Mental Disorders, the American Psychiatric Association defines gender dysphoria as a “marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by” specified “strong” desires, preferences, or convictions.REF “If untreated, gender dysphoria may lead to anxiety, depression, eating disorders, substance abuse, self-harm, and suicide.”REF

School Gender Policies

Notwithstanding such conceptual and definitional difficulties, there is no doubt that issues of sexuality and identity, especially during adolescence, can profoundly affect how individuals understand themselves and others, as well as influence the course of their lives. Because minors lack the experience, knowledge, and judgment to make sense of this by themselves, the question is who will fill that gap. Public schools answer this question with gender policies that impose a particular ideological view of these issues, but prevent parents from playing this role.REF They elevate “a child’s gender-related choices to that of paramount importance, while excluding a parent from knowing of, or participating in, that kind of choice.”REF

In doing so, they have broken the bonds of trust between parent and child, relegating parents to uninformed bystanders in the development of their children’s very identities. Policies like this are “as foreign to federal constitutional and statutory law as [they are] medically unwise.”REF

Policy Components. School gender policies have three common components.

1. They take at face value and treat as conclusive a student’s communication or other indication of his or her gender identity.
2. They require school personnel immediately to treat the student consistent with whatever gender identity a student may have communicated, including the use of student’s preferred names or pronouns and access to student’s desired school facilities.REF
3. They prohibit communication about the student’s gender identity or “transgender status” to anyone, including his or her parents, without the student’s permission.

Two related problems are particularly relevant to the legal validity of these policies. First, they impose upon students and their parents a controversial ideology regarding a profoundly important and highly sensitive subject. Second, this problem is compounded by the fact that this subject is unrelated to either curriculum or school administration—the spheres in which schools are traditionally given deference. Instead, these policies are directly related to family life, parent/child relationships, and other aspects of what has traditionally been deemed the prerogative of parents in raising their children.

The Diminished Capacity of Children. School gender policies, which apply to students of any age, presume that “[t]he person best suited to determine a student’s Gender Identity is the individual student.”REF Yet this presumption is at odds with the consensus, in many other contexts, that minors lack the maturity, judgment, or experience to make decisions, especially regarding important matters that can significantly affect their lives.

The Supreme Court has long recognized this fact, and as such, it renders these school policies particularly noxious. The Supreme Court has affirmed that “[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. [Therefore], parents can and must make those judgments.”REF The Supreme Court also wrote in 2021:

A child’s “lack of maturity” and “underdeveloped sense of responsibility” lead to recklessness, impulsivity, and heedless risk-taking…. They “are more vulnerable…to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment”…. And because a child’s character is not as “well formed as an adult’s,” his traits are ‘“less fixed.”REF

A child’s decision about whether to engage in a school-facilitated social “gender transition,”REF and the underlying mental health implications of such a choice require the maturity and guidance of a child’s custodial parents during that process.REF “Social transition”—the facilitation of a student’s desired bathroom use, pronoun, or name use—is a clinically significant therapeutic interventionREF by his or her school and “not a neutral act.”REF

Studies show that these “social transitions” lock gender-confused adolescents into the belief that they are born into the wrong body and, invariably, lead to an increased likelihood of future medical gender-related interventions designed to “affirm” that gender, including surgery, puberty blockers, and cross-sex hormones.REF This is particularly notable as “[c]hildren, by definition, are not assumed to have the capacity to take care of themselves.”REF Therefore, the “law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”REF

In Bellotti v. Baird,REF which involved a challenge to a state law requiring parental consent for a minor to obtain an abortion, the Court recognized that “during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”REF As a result, “parental notice and consent are qualifications that typically may be imposed by the State on a minor’s right to make important decisions.”REF Similarly, in H.L. v. Matheson,REF the Court acknowledged that “the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”REF This authority “presumptively includes counseling [children] on important decisions.”REF

And in Roper v. Simmons,REF the Court held that executing an individual for crimes committed while a minor violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court observed several “general differences between juveniles under 18 and adults.”REF These include “comparative immaturity and irresponsibility”REF and vulnerability and susceptibility “to…outside pressures, including peer pressure.”REF

The Precipitous Rise in Childhood Transgenderism

The “influences and outside pressures”REF that the Supreme Court noted in Roper may not have negative or lasting effects in some contexts. Unfortunately, it appears that within the context of gender identity, they have both. Magnified by social mediaREF and promoted by school gender policies,REF what is sometimes referred to as “social contagion”REF is fueling a dramatic increase in the number of adolescents who identify as transgender.

As reported by the New York Times:

[m]any parents of kids who consider themselves trans say their children were introduced to transgender influencers on YouTube or TikTok, a phenomenon intensified for some by the isolation and online cocoon of Covid. Others say their kids learned these ideas in the classroom, as early as elementary school, often in child-friendly ways through curriculums supplied by trans rights organizations, with teaching aids like the “gender unicorn” or the “gender bread” person.REF

A June 2022 report by the Williams Institute at UCLA’s School of Law found that while “the percentage and number of adults who identify as transgender has remained steady over time,” the percentage of individuals identifying as transgender who are between 13 and 17 years of age nearly doubled in just five years.REF By 2022, minors were nearly five times more likely than adults to identify as transgender.REF

A 2018 study showed an especially significant rise in “rapid-onset gender dysphoria” appearing for the first time during puberty, often in the context of belonging to a peer group in which one or more members became gender-dysphoric or transgender-identified at the same time.REF The study suggested that “peer contagion,” which has been shown to be a factor in problems such as depression and eating disorders, may contribute to this phenomenon.

Rapid-Onset Gender Dysphoria. School gender policies make rapid-onset gender dysphoria even more likely. They uniformly prohibit consideration of any medical diagnosis or treatment, documentation, or other objective evidence that may give a student’s subjective communication any context.REF And by excluding parental knowledge, let alone input, these policies foreclose the best source of information regarding a student’s medical history, temperament, habits, activities, or other factors that may provide a better and more accurate understanding of the student’s communication regarding gender identity: his or her parents.

Prohibiting consideration of external factors means that schools must take a student’s expression or communication regarding gender identity at face value, on its own terms. Recall, however, that gender identity is inherently subjective, internal, and variable. There is, by definition, no standard or common way for students to communicate regarding their gender identity and, therefore, no way for schools to correctly identify the very thing on which their gender policies are based. Taking a student’s expression of gender identity “at face value” therefore cannot be the basis of a rational school-wide policy.

The Madison, Wisconsin, policy provides an example. It defines gender identity as “[a]n internal, deeply felt sense of being male, female, a blend of both or neither.” All students, the policy states, “must have access to changing facilities” and must be “able to participate on [an athletic] team consistent with their gender identity.” How can a school maintain changing areas or athletic teams “consistent with” claims of being neither male nor female or both? And how can schools do so when a student can change gender identity at any time and in any way?

Subjective Expression. Relying solely on a student’s subjective expression of gender identity, however, is even more problematic. These policies describe the communication that triggers social transitioning and parental exclusion in many different ways. Some policies refer concretely to a student’s “assertion” of gender identity but do not define or provide any guidance for how to identify or interpret such an assertion. Dictionaries, for example, typically define an assertion as a “confident and forceful statement of fact or belief”REF or a “declaration that’s made emphatically.”REF At the same time, while the Escondido policy noted above refers to an “assertion” of gender identity, school officials there have also said that “[t]here is no need for a formal declaration.”REF

Other policies cover situations in which “the school administration is notified by a student or the student’s parent or guardian that the student will assert a gender identity that differs from previous representations or records.”REF These policies do not indicate the form that this assertion might take or what it would mean if no “previous representations or records” indicate anything about a student’s gender identity.

Some policies cover “gender identity…which is consistently asserted at school”REF without either defining “consistently” or providing criteria for what constitutes an assertion. Others cover “gender identity as expressed by the student and asserted at school”REF without distinguishing between expressions and assertions or how a student makes either regarding gender identity.

After excluding any external considerations—and unable to interpret or sometimes even identify a student’s subjective expression of internal feelings—a school that insists on such a policy has no choice but to impose its own concepts and terms. These include the ideological position that minors have an absolute right to privacy regarding what the school says their gender identity is at the moment, a right that requires school personnel to exclude a minor’s parents from not only any role in making decisions but, in most cases, any knowledge of the situation at all. These policies conflict with the parents’ constitutional right to direct the care, upbringing, and education of their children.

Parental Rights

Under Common Law. The principle that parents have primary authority regarding the upbringing and education of their children has deep philosophical and legal roots. In his work Summa Theologica, for example, Thomas Aquinas wrote in the 13th century that “it would be contrary to natural justice, if a child…were to be taken away from its parents’ custody, or anything done to it against its parents’ wish.”REF John Locke emphasized the same principle four centuries later in his Second Treatise on Government,REF arguing that parental childrearing authority precedes and is independent of political authority.REF

In his Commentaries on the Laws of England, published in 1765, William Blackstone wrote of parents’ common-law duty to provide for the maintenance, protection, and education of their children.REF In terms of priority, Blackstone argued that the duty to provide a suitable education for children had “the greatest importance of any.”REF Blackstone, who was influenced by Locke, was “one of the political philosophers whose writings…were ‘most familiar to the Framers.’”REF Parents’ common-law duty became a constitutional right through the Fourteenth Amendment.

Under Constitutional Law: Substantive Due Process. The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property, without due process of law.”REF In two ways, however, the Supreme Court has gone beyond the text’s procedural focus and recognized new constitutional rights by substantively defining “liberty.” This interpretive approach is often called substantive due process.

Both beforeREF and afterREF ratification of the Fourteenth Amendment, the Supreme Court held that the Bill of Rights—which, on their face, apply only to Congress—do not apply to the states. Beginning in 1925, however, the Supreme Court reversed course and began applying individual provisions of the Bill of Rights to the states by “incorporating” them into “liberty”REF in the Fourteenth Amendment’s Due Process Clause. While scholars have long debated the Supreme Court’s change of direction,REF the rights being incorporated at least appear somewhere in the Constitution’s text.

The second method by which the Supreme Court has given Fourteenth Amendment “liberty” substantive meaning is even more controversialREF because it results in recognition of rights that do not appear in the constitutional text at all. The idea that a written Constitution contains, in effect, unwritten substantive provisions conflicts with the Framers’ purpose in putting the Constitution in writing in the first place. The Supreme Court recognized in Marbury v. MadisonREF that they did so in order that the Constitution’s limits on government “may not be mistaken nor forgotten.”REF

When the Framers designed the American system of government—and the judiciary’s role within it—they explained that “strict rules and precedents, which serve to define and point out [the judges’] duty in every particular case that comes before them” is “indispensable” to minimize “arbitrary discretion.”REF Less than a decade after the Constitution’s ratification, the Supreme Court held that it “can be revoked or altered only by the authority that made it.”REF The power to recognize rights that the people—the authority that made the Constitution—did not put in its text, rights based on ultimately unknown subjective ideas or criteria, is incompatible with these principles.

The Supreme Court, in fact, has acknowledged that substantive due process has been a “treacherous field”REF and warned against “the natural human tendency to confuse what [the Fourteenth] Amendment protects with our own ardent views about the liberty that Americans should enjoy.”REF To that end, the Court has “been reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this unchartered area are scarce and open-ended.”REF

Attempting to cabin substantive due process, the Supreme Court has emphasized two general criteria for recognizing unenumerated rights under the Fourteenth Amendment. In Palko v. Connecticut,REF the Court held that a law allowing the state to appeal criminal convictions violated the Fourteenth Amendment. The Court explained that the Fourteenth Amendment incorporated provisions of the Bill of Rights because those rights are “implicit in the concept of ordered liberty.”REF And in Moore v. City of East Cleveland,REF the Court held that an ordinance limiting occupancy of a building to members of a single defined “family” violated the Fourteenth Amendment. “Appropriate limits on substantive due process,” the Court held, include the requirement that rights be “deeply rooted in this Nation’s history and tradition.”REF

Another hedge against courts using substantive due process too expansively is the Supreme Court’s insistence that rights said to meet these criteria must be carefully or specifically described rather than vaguely stated.REF The Court “has always been reluctant to expand the concept of substantive due process” and has focused on “how [a] petitioner describes the [unenumerated] constitutional right at stake.”REF

When the Supreme Court has concluded that an asserted unenumerated right falls in one or both of these categories, identifying it as a “fundamental” right, it will apply strict scrutiny to government actions that burden that right.REF This standard requires the government to show that its action was “justified only by compelling state interests” and was “narrowly drawn to express only those interests.”REF

Parental Rights in Education

The Supreme Court has several times recognized parents’ constitutional right to direct the upbringing of their children, including in the educational context. In Meyer v. Nebraska,REF for example, the Supreme Court held more than a century ago that a state law requiring school instruction to be conducted in English violated the Fourteenth Amendment. It held that “liberty” includes “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”REF These privileges included “the power of parents to control the education of their own.”REF

Pierce and Its Progeny. In Pierce v. Society of Sisters,REF the Court held that a state law requiring that children between the ages of eight and 16 attend public schools violated the Fourteenth Amendment. Citing Meyer, the Supreme Court held as “entirely plain” that the law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”REF

Federal courts applying these principles in individual cases have provided additional guidance. Because family relationships are the kind of “personal bonds” that “act as critical buffers between the individual and the power of the State,”REF for example, those family relationships must be given “a substantial measure of sanctuary from unjustified interference by the State.”REF And as the Supreme Court has clarified that the rights of parents to the companionship, care, custody, and management of their children are within the scope of “fundamental” liberty interests subject to these constitutional protections,REF a state may not affirmatively interfere with that fundamental right without demonstrating that its actions are narrowly tailored to achieve a compelling state interest.REF

This is no less so within the context of public education.

Federal courts have held that parental rights do not end at the “school house door,”REF and that “public schools must not forget that ‘in loco parentis’ does not mean ‘displace parents.’”REF But the parental right, as we have written in a previous Legal Memorandum,REF is not unlimited, absolute, or unqualified.REF

Federal appellate courts have recognized categories of educational decisions in which parents do not have a constitutional interest,REF often indicating that the parental right to control the upbringing and education of their children is comparatively weaker regarding the development of a substantive curriculum or school administration.REF While parents, for example, have the right to determine “which school their children will attend,”REF they cannot dictate “how a public school teaches their child.”REF The challenge for this analysis is to clarify on which side of the line gender policies fall and, therefore, whether they implicate strong or weak parental rights. In general, the parental right to control the upbringing and education of their children is comparatively weaker regarding the development of a substantive curriculum or school administration.

Gruenke. At the same time, courts have held that even in this context, the balance may favor parents regarding sensitive subjects such as sexuality or gender identity. In Gruenke v. Seip,REF for example, the U.S. Court of Appeals for the Third Circuit held that in asking a member of his high school swim team to take a pregnancy test without her mother’s knowledge or consent, a coach had plausibly violated the mother’s Fourteenth Amendment due process right. The court wrote that “[i]t is not unforeseeable…that a school’s policies might come into conflict with the fundamental right of parents to raise and nurture their child. But when such collisions occur, the primacy of the parents’ authority must be recognized and should yield only where the school’s action is tied to a compelling interest.”REF Noting that “[i]t is not educators, but parents who have primary rights in the upbringing of children…[s]chool officials have only a secondary responsibility and must respect these rights,”REF the court took particular issue with the school’s failure to inform the girl’s parents and the confidential nature of its actions.REF

Ridgewood. In C.N. v. Ridgewood Board of Education,REF the U.S. Court of Appeals for the Third Circuit held that an anonymous survey seeking details of students’ personal lives, including their sexual behavior, did not violate the Fourteenth Amendment. The court noted, however, that “the challenged action of the school defendant is not neatly tied to considerations of curriculum or educational environment.”REF School-sponsored counseling or psychological testing “that pry into private family activities,” the court warned, might “overstep the boundaries of school authority and impermissibly usurp the fundamental rights of parents to bring up their children.”REF It noted that “introducing a child to sensitive topics before a parent might have done so herself can complicate and even undermine parental authority.”REF

Tatel. In Tatel v. Mt. Lebanon School District,REF parents of first-grade children sued because a teacher had been instructing them about gender dysphoria and transgender transitioning without giving parents notice or an opportunity to opt their children out of such instruction. Even though this occurred in the instructional context, the court found a Fourteenth Amendment violation, holding that “teaching a child how to determine one’s gender identity” strikes “at the heart of parental decision making in a matter of greatest importance in their relationship with their children, i.e., forming their children’s religious and moral beliefs and their identity.”REF

Ricard. In Ricard v. USD 475 Geary County, KS School Board,REF a teacher challenged a school policy much like those examined in this analysis. It required school personnel to use a student’s preferred first name and pronouns and prevented communicating with parents regarding their child’s preferred name and pronouns without the child’s consent. The teacher claimed these policies violated her First Amendment rights to free speech and free exercise of religion. The court denied a preliminary injunction against the policy regarding the use of a student’s preferred name and pronouns but granted it against the policy regarding parental communication.

While not a final decision on the merits, the court in that case concluded that the plaintiff would likely be able to show that requiring communication with parents that, in her view was dishonest, substantially burdened her Christian beliefs. “Plaintiff would face the Hobbesian choice,” the court explained, “of complying with the district’s policy and violating her religious beliefs, or abiding by her religious beliefs and facing discipline.”REF

Further, the school district observed that a federal law allowing parents to access their children’s education records might disclose his or her preferred name and pronouns. A policy allowing an exception for such a secular purpose, but not one for religious reasons, showed that the parental communication policy is not “generally applicable,” but actually disfavors religion. As a result, it would have to be a “narrowly tailored” means to further “interests of the highest order”—a very high legal standard—to be valid under the First Amendment.REF The court concluded that the policy could not meet this standard in light of the Supreme Court’s recognition of the fundamental parental right to direct the upbringing and education of children.

The court found it “difficult to envision why a school would even claim—much less how a school could establish—a generalized interest in withholding or concealing from the parents of minor children, information fundamental to a child’s identity, personhood, and mental and emotional well-being such as their preferred name and pronouns.” Parental exclusion was not merely an effect of the school’s gender policy, but its intention. The school district “intended to interfere with the parents’ exercise of a constitutional right to raise their children as they see fit. And whether the District likes it or not, that constitutional right includes the right of a parent to have an opinion and to have a say in what a minor child is called and by what pronouns they are referred.”REF

While the courts, therefore, have broadly distinguished between curriculum and administration and other school actions, even within the context of instruction and curriculum, gender identity is a “matter of great importance that goes to the heart of parenting.”REF

To summarize, the Supreme Court has recognized that the parents’ right to direct the upbringing of their children is “essential to the orderly pursuit of happiness,” “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty.” That right is strong in the educational context, generally, remaining so even within the context of curriculum and instruction regarding highly sensitive matters that impact family relationships.

Minors’ immaturity and lack of judgment and experience counsel for more parental involvement, not less. Federal and state law implement this principle by giving priority to both parental knowledge and decision-making authority in matters affecting the well-being and education of their children. This is the philosophical and legal context, seven centuries in the making, within which to address the rapid social and cultural changes on gender identity that are playing out in America’s schools.

Parental Litigation Over School Gender Policies

As the Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected,”REF there have been a proliferation of lawsuitsREF across the country against school districts with these secrecy policies. These lawsuits share similar claimsREF and characteristics. In each, the court was tasked with determining whether the gender identity confidentiality policy followed by school personnel violated the right of the parents to direct their child’s education as protected by the U.S. Constitution. The fundamental interpretive legal principles underlying each lawsuit are the same, and this analysis addresses some of the resulting federal court rulings below.

Together, they argue for much-needed clarity from the Supreme Court on the precise contours of parental rights within the context of school gender policies.

Standing. In setting out the powers of the federal judiciary, Article III of the U.S. Constitution grants federal courts the power to adjudicate active “cases” and “controversies” only.REF The Supreme Court in Lujan v. Defenders of WildlifeREF articulated a three-part test to determine whether a party has standing to sue under Article III:

1. The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is: (a) concrete and particularized; and (b) actual or imminent;
2. There must be a causal connection between the injury and the conduct brought before the court; and
3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.

While anticipated future injuries may be sufficient to establish standing, those injuries must also be concrete, imminent, and more than merely conjectural.REF However, federal courts have “long held that the deprivation of a constitutional right [is] irreparable,”REF and constitutes a sufficient injury to confer standing.

In addition, many—if not all—of the challenged gender confidentiality policies violate not just parents’ constitutional rights, but federal statutory rights to their children’s educational information as well.REF The Supreme Court has determined that a violation of a parent’s statutory right to information is sufficient to confer standing.REF Therefore, “[w]here a school district or its employees affirmatively act to prevent a parent from having information necessary to make informed decisions about their child’s safety, the parent has standing to bring their own claims.”REF

Parents Involved. Perhaps most directly relevant to school policy litigation, however, is the Supreme Court’s holding in Parents Involved in Community Schools v. Seattle School Dist. No. 1,REF in which the Court held that parents have standing to sue when the practices and policies of a school threaten the rights and interest of their minor children. In Parents Involved, the Supreme Court assessed a parental organization’s standing to sue a school district and a school board under the Fourteenth Amendment because of its assignment plan that relied on racial classifications to allocate high school enrollment slots, elementary school enrollment slots, and transfer requests. The Court determined that because “the group’s members have children in the district’s elementary, middle, and high schools…and [their] elementary and middle school children may be denied admission to the high schools of their choice when they apply for those schools in the future,” the group had standing to challenge the policies under the Equal Protection Clause.REF

Notwithstanding, much of the parental litigation involving school secrecy policies has been hobbled by court findings that the plaintiff parents lack standing and is plagued by misapplication of standing principles by some federal courts. This is particularly so in cases where the parents challenging the school policy have children that—while subject to the policy—do not express gender dysphoria or utilize the school confidentiality policy. But some cases would not suffer this defect, such as when the parents challenging the school policy have children with feelings of gender incongruence, and the school has facilitated the social transition of their children and hidden that fact from the parents. These two types of cases represent the difference between facial and as-applied constitutional challenges.

Facial Challenges. A facial challenge is one in which the plaintiff alleges that “no application of the statute would be constitutional.”REF In contrast, courts define an as-applied challenge as one “under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiff’s particular circumstances.”REF

Parents who bring facial pre-enforcement challengesREF—those whose children express no gender incongruity—must still prove that they have suffered or will suffer an injury sufficient to satisfy standing as required by Article III of the Constitution, in addition to demonstrating that no application of the gender confidentiality policy would be constitutional. In the case of school gender policies, parents with children who express no gender incongruity often face the prospect of judicial determinations that find the risk of injury insufficiently “imminent.” However, imminence is an “elastic concept” intended only to ensure injuries are not “too speculative.”REF And the Supreme Court has held that standing does not “uniformly require plaintiffs to demonstrate that it is literally certain”REF parties will suffer the alleged harm, although that is how many of the federal courts tasked with assessing the constitutionality of school gender policies have interpreted it. Rather, the Court has allowed a showing of imminence through alternative means—such as “preenforcement review of facial due process challenge[s].”REF

As of the date of publication of this Legal Memorandum, a case is pending on a petition for certiorari before the U.S. Supreme Court addressing this precise threshold question as it pertains to school gender policies. The petitioners in that case have asked the justices to determine whether they have standing to challenge a school confidentiality policy, though their children, while subject to the policy, have not expressed gender dysphoria or requested the concealment of information on the same from their parents.

This case, and others like it, are discussed below.

The Litigation

42 U.S.C. § 1983. The vehicle for seeking redress of injuries against state actors including public school administrators is a civil action for deprivation of rights brought under 42 U.S. Code § 1983.

Section 1983 provides an individual the right to sue state government employeesREF or others acting “under color of state law” for civil rights abuses such as violations of constitutional law. While it provides no substantive rights itself, it does provide the vehicle for injured parties to recover damages from someone who violated their rights under the Constitution or federal statute while acting in an official government capacity.REF

In relevant part, the statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.REF

The requirements for success on a § 1983 substantive due processREF challenge—whether facial or as-applied—are violation of a federal constitutional right and proof that the alleged violation was committed by a person acting under the color of state law and was of such a magnitude that it shocks the conscience.REF

The question of whether school policies concealing the gender identity information of minors are egregious enough to “shock the conscience” has proven critical to the success or failure of much of the federal litigation thus far on these policies.

Shocks-the-Conscience Test. The “shocks the conscience” test was first articulated by the U.S. Supreme Court in 1952 in Rochin v. California. In that case, the “majority [held] that the Due Process Clause empowers this Court to nullify any state law if its application ‘shocks the conscience,’ offends ‘a sense of justice’ or runs counter to the ‘decencies of civilized conduct.’”REF Since then, the Court has returned to the Rochin standard time and again, especially within the context of alleged violations of substantive due process rights.REF

In County of Sacramento v. Lewis,REF the parents of a motorcycle passenger who was killed in a high-speed police chase of the motorcyclist brought a § 1983 claim against the county of Sacramento, the sheriff’s department, and the sheriff’s deputy for deprivation of the passenger’s substantive due process right to life. The Supreme Court, when assessing whether the executive action undertaken by the county officials was sufficiently “conscience shocking” first noted that “[t]he touchstone of due process is protection of the individual against arbitrary action of government.”REF It wrote that while due process protection in the substantive sense limits what government can do in both its legislative and executive capacities, the criteria to identify what is “fatally arbitrary” differ depending on whether the action is executive or legislative.REF

Executive action generally involves “a specific act of a governmental officer that is at issue.”REF In other words, “[e]xecutive acts characteristically apply to a limited number of persons (and often to only one person); executive acts typically arise from the ministerial or administrative activities of members of the executive branch.”REF By contrast, legislative acts generally apply to a larger segment of society and “laws and broad-ranging executive regulations are the most common examples.”REF

For executive acts, the Supreme Court said, courts should apply the shock-the-conscience test.REF And while the Lewis Court did not address the test for legislative or quasi-legislative acts, other federal courts have since held that when assessing legislative acts, a court should apply the more traditional levels of scrutiny (such as rational basis review, heightened or intermediate review, or strict scrutiny), depending on the specific right asserted.REF When an asserted right is considered “fundamental,” strict scrutiny review applies.REF

In Lewis, the Court wrote that its precedent addressing abusive executive action has emphasized that only the most egregious official conduct can be said to be “arbitrary in the constitutional sense.”REF Official “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level,”REF and neither history nor tradition, the Court wrote, “justify finding a due process violation when unintended injuries occur after the police pursue a suspect who disobeys their lawful order to stop.”REF

The shocks-the-conscience test has risen to new prominence in litigation on school gender confidentiality policies. School officials often advance claims that they are exercising a legitimate government interest in protecting transgender students from bullying or potential domestic abuse at the hands of non-affirming parents. As such, they claim that their official action is not “conscience-shocking” enough to meet the threshold for a deprivation of the constitutional parental right under 42 U.S.C. § 1983. This ignores, however, long-standing federal precedent on how deliberate interference with the parent-child relationship may satisfy the shocks-the-conscience test. It likewise ignores the fact that, as the Supreme Court has stated,REF school board policies that apply to all students and school officials are properly assessed as legislative—not executive—actions. Therefore, an entirely different analysis applies.

Regardless of whether school gender policies that interfere with parental rights are considered to be executive or legislative acts, however, parent plaintiffs meet the applicable threshold for both.

School Policies: Executive or Legislative Action?

As outlined above, American history and tradition evince a long-standing Fourteenth Amendment substantive due process right to direct the care and upbringing of one’s children. In particular, the Supreme Court has recognized the primacy of the parental right in non-curricular matters of a child’s education.REF Indeed, “[t]he Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.”REF

Familial relationships are the quintessential “personal bonds” that “act as critical buffers between the individual and the power of the State,”REF and the family, as an institution deeply rooted in this nation’s history and tradition, is the vehicle by which moral and cultural values are passed down.REF

Federal courts have frequently employed a shocks-the-conscience test to school confidentiality policies, determining them to be exercises of executive function but insufficiently conscience shocking to be unconstitutional. These courts, however, have disregarded precedent indicating that, as one court correctly noted, “conduct shocks the conscience when there is highly intrusive conduct, the use of physical force, or interference with a protected relationship (e.g., a parent–child relationship).”REF

Grendell. In Grendell v. Gillway,REF for example, the court found that the behavior of the police “shocked the conscience” when an officer lied to and threatened an 11-year-old girl in order to extract incriminating information about suspected drug use by her parents, writing that it struck at “the basic fabric of all parent–child relations: love, trust, and faith.”REF Federal circuits have likewise held that the interference with the right of familial association can shock the conscience.REF Indeed, the government’s “forced separation of parent from child, even for a short time, represents a serious impingement”REF on a parent’s substantive due process right to familial association. A parent must allege an intent to interfere with this right; specifically, that the state actor directed conduct at the familial relationship “with knowledge that the statements or conduct [would] adversely affect that relationship.”REF

Dubbs. Federal courts have also held that interference with a fundamental right may shock the conscience. In Dubbs v. Head Start, Inc.,REF the Tenth Circuit acknowledged that “the ‘shocks the conscience’ standard applies to tortious conduct challenged under the Fourteenth Amendment,” but left the door open to the possibility of greater protection for fundamental rights that are “objectively, deeply rooted in this Nation’s history and tradition.”REF The Supreme Court has often reinforced the fact that parenting and child-rearing are among the oldest of its recognized fundamental rights.REF

Not only is the parental right one the Supreme Court has recognized as fundamental, but it has also held that the parent–child relationship is a protected relationship that must be substantially shielded from government intrusion. For both reasons, intrusion into the parent–child relationship by state school officials who withhold critical information on a minor child’s self-identification from his or her parents—and in many cases, actively deceive those parents—is conduct that ably meets the shocks-the-conscience test.

Should school gender policies fail to shock the conscience when viewed as an exercise of executive power, however, parental claims can succeed on an alternate theory. The Supreme Court has clarified that school board policies are an exercise of legislative—not executive—authority and are therefore subject to the traditional tiers of scrutiny. As a result, a strict scrutiny analysis (and the attendant presumption of unconstitutionality) should apply to these school policies because the parental right has long been recognized as fundamental.

A few federal courts have properly assessed school board rules or policies as exercises of legislative function, subject to a fundamental rights’ analysis and a balancing of these rights against the asserted interests expressed by the school, school board, or school district entity.REF In each of those challenges, parents identified a municipal custom or specific policy that caused a violation of their fundamental constitutional rights,REF resulting in liability against both the school entity for enacting the unconstitutional policy and the individuals who enforced the policy.REF

Harrah. In Harrah Independent School District v. Martin, the Supreme Court assessed a legislative exercise, and held that a school board rule requiring teachers to earn additional college credits was “endowed with a presumption of legislative validity, and the burden [was] on [the respondent teacher] to show that there is no rational connection between the Board’s action and its conceded interest in providing its students with competent, well-trained teachers.”REF Notably, however, the school board rule in Harrah did not implicate a fundamental liberty interest—such as the long-recognized right of parents to direct and oversee their children’s upbringing.REF The Supreme Court pointed out as much, writing that:

[T]here is no claim that the interest entitled to protection as a matter of substantive due process was anything resembling “the individual’s freedom of choice with respect to certain basic matters of procreation, marriage, and family life…” Rather, respondent’s claim is simply that she, as a tenured teacher, cannot be discharged under the School Board’s purely prospective rule establishing contract nonrenewal as the sanction for violations of the continuing-education requirement incorporated into her contract.REF

By contrast, school confidentiality policies strike right at the heart of the fundamental parental right and are specifically “intended to interfere with the family relationship.”REF They should therefore be subject to strict scrutiny review.REF This renders the policies constitutionally suspect unless school districts can demonstrate that the policies are narrowly tailored to achieve a compelling interest. Though school officials may assert that they have a compelling interest in protecting children from perceived danger, the banning of communication between parent and school regarding the parent’s minor child, the creation of false student records hidden from the parent, and the active obfuscation on the child’s gender identity expression—these are not the most narrowly tailored means to achieve the school’s goal. Assuming, arguendo, that the state’s interest in preventing parental bullying or abuse of a transgender-identified student constitutes a compelling state interest, school gender policies would need the kind of narrow tailoring that accounts for both precedent and the duties of school officials under related statutory authority.

Parham. A state’s representation of what may constitute a “child’s best interest” would still be subject to significant and long-recognized limitations. In Parham v. J.R.,REF for example, the Supreme Court assessed the constitutionality of a Georgia mental health law that permitted the involuntary admission of a minor child to a mental health hospital by his or her parents. Plaintiff children alleged that they had been deprived of their liberty without procedural due process, but the Court disagreed. In addressing claims that parents might abuse their minor children through the involuntary commitment process, the Supreme Court noted:

We cannot assume that the result in Meyer v. Nebraska…and Pierce v. Society of Sisters…would have been different if the children there had announced a preference to learn only English or a preference to go to a public, rather than a church, school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child.REF

Indeed, federal courts have held specifically that a “state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.”REF Moreover, school officials and employees are already required to report information to state child welfare agencies about the possibility of abuse or neglect of minor children.REF

The overwhelming majority of school policies simply assume that a student’s parents will be unsupportive and might subject their child to abuse for questioning his or her gender identity. If the schools actually believed that a student has been or might be subjected to abuse (and by abuse, the authors mean some form of physical or extreme psychological abuse beyond simply disapproving of their child’s self-expression), it would be incumbent upon the school to conduct some form of investigation, and to report the matter should such an investigation reveal, as courts have said, “a child has been abused or is in imminent danger of abuse.”

The absence of any such requirement clearly demonstrates that these school policies are not narrowly tailored to achieve the objective that the state believes is compelling enough to override the parents’ fundamental rights to rear their child as they deem appropriate. Without such a requirement or demonstration, these policies sweep too broadly to satisfy strict scrutiny review and are therefore unconstitutional.

Regino v. Staley. In Regino v. Staley,REF Aurora Regino filed suit against California School Superintendent Kelly Staley and other officials over a regulation that resulted in the school district “socially transitioning”REF students expressing a transgender identity without notifying and obtaining the informed consent of parents, in violation of their constitutional rights. Among others, Regino brought a facial and as-applied challenge under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment substantive due process right to parent her minor child, A.S.

A.S., an elementary school student, had expressed her desire to be a boy to her school counselor, and the school’s staff began referring to her by a new name and new pronouns without consulting with Regino. The staff hid this information from Regino, who was unaware that her daughter was subject to the school confidentiality policy and had a “gender support plan” in place—until her minor daughter told her. Regino filed a motion with the court seeking to enjoin the policy.

In denying her request, Judge John Mendez found that Regino was unlikely to succeed on the merits, holding that she could not demonstrate that she had a constitutional right to be informed of her minor child’s new name or preferred pronouns, or that she was likely to suffer irreparable harm if the policy was not enjoined.REF

In determining that Regino was unlikely to succeed on the merits, Judge Mendez wrote:

While the cases cited by Plaintiff refer to the generally held presumptions that parents act in the best interest of children and help compensate for their children’s lack of maturity and experience when dealing with intimate and health related decisions…[n]one of the cases cited by Plaintiff opine on whether the state has an affirmative duty to inform parents of their child’s transgender identity nor whether the state must obtain parental consent before socially transitioning a transgender child…. In the absence of the requisite legal and statutory support for Plaintiff’s contention that she has a constitutional right that was violated, Plaintiff cannot establish a likelihood of success on the merits.REF

The court reached this conclusion even though it recognized “the novel nature of Plaintiff’s claims and finds that Plaintiff has raised serious questions that go to the merits of her case.”REF Judge Mendez added that Regino’s nine-month delay in filing for injunctive relief and the impermissible burden on the school to apply the policy in different ways to different children argued against a grant of injunctive relief.

He concluded:

It is not necessarily a school’s duty to act as an impenetrable barrier between student and parent on intimate, complex topics like gender expression and sexuality…[but] on the other hand, granting parents unimpeded access to and control over a student’s personal life can result in conflict that makes students feel vulnerable and unsafe both at home and at school, depending on their parents’ personal beliefs…[and] a school could be prevented from providing institutional support and protection for certain marginalized identities because of parents’ personal beliefs.REF

Those concerns, Judge Mendez wrote, were better suited for deliberation by the legislature.

The school superintendent, Kelly Staley, subsequently filed a motion to dismiss the case. In granting the motion, Judge Mendez determined that the school policy was not egregious enough to “shock the conscience,” and that Regino had not demonstrated her constitutional rights as a parent had been violated.REF The court analyzed the issue utilizing the rational basis test,REF rather than subjecting the policy to strict scrutiny analysis, and determined that the defendant had set forth a legitimate state interest in creating a “zone of protection” for transgender or gender-questioning students from adverse hostile reactions, including domestic abuse and bullying.REF That, he wrote, was in line with the regulation’s general purpose to combat discrimination and harassment against students.

Significantly, though, the court failed to recognize Supreme Court precedent indicating that a state’s notion of what may be “thought to be in the children’s best interest,” without some “showing of unfitness” on the part of parents, offends the Due Process Clause.REF

Judge Mendez also ignored the Supreme Court’s holding that

[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition. Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.REF

In this case, the school district had not demonstrated Regino’s unfitness as a parent, nor had it proven that the policy was developed as a result of demonstrated incidents of Regino’s abuse or neglect of her minor daughter. Though Judge Mendez determined that a “zone of protection” theory satisfied rational basis judicial review, long-standing Supreme Court precedent does not support a finding that the creation of a “zone of protection” is a legitimate state interest. Still, Judge Mendez concluded his opinion by noting that the school district’s staff was not forcing students to adopt transgender identities or to keep their identities secret from their parents.REF Rather, they were simply “directed to affirm a student’s expressed identity and pronouns and disclose that information only to those the student wishes.”REF

Even though Aurora Regino had a child who was directly affected by and who utilized the school’s gender policy, and even though she was completely excluded from the school’s determination on the social transition of her minor daughter, the trial court erroneously concluded that Regino had not demonstrated that the school’s policy violated her clearly established constitutional rights.

Littlejohn v. School Board of Leon County Florida. In 2020, as the COVID-19 pandemic swept the nation, and most children were relegated to virtual school, January and Jeffrey Littlejohn’s 13-year-old daughter told January that “she no longer felt like a girl.” This revelation appeared at the same time that three of their daughter’s friends at her local middle school had also suddenly declared a transgender identity, and while their daughter was struggling with Attention Deficit Hyperactivity Disorder that made online learning challenging.REF Over the next two years, January and Jeffrey’s daughter’s claimed identity changed four times. She revealed she had met with school administrators and was requesting that her parents refer to her by a different name, and “they/them” pronouns.

After the Littlejohns demanded to know why administrators had met with their minor daughter without notifying them, they learned that the school district’s LGBTQ+ Equity Committee had created and implemented the “LCS Lesbian, Gay, Bisexual, Transgender, Gender Nonconforming and Questioning Support Guide” throughout Leon County Schools, including at Deer Lake Middle School, where their daughter was a student. The guide directed administrators and staff not to communicate with and involve parents in decisions related to their children’s desire to “socially transition” unless parents were deemed in “support of their child’s gender transition.”REF The guide also advised staff that they could change a student’s records at the student’s request, without any involvement of the parents.

In late 2021, January and Jeffrey Littlejohn learned that the school had developed a gender support plan with their daughter without their knowledge, affirming their daughter’s belief that she was nonbinary, providing housing and bathroom recommendations, and instituting a plan to use “they/them” pronouns for their child. The Littlejohns subsequently filed a lawsuit under 42 U.S.C. § 1983 against the Leon County, Florida, School Board and various school officials alleging a violation of, among others, their constitutional rights under the Fourteenth Amendment.

The trial judge, Chief Judge Mark Walker, rejected their claim, stating that “the law regarding substantive due process rights afforded to parents is an unsettled area of constitutional law, such that a reasonable person would not be able to know when their conduct is in violation of the law.”REF His opinion was largely devoid of any reference to the more than 100 years of jurisprudence establishing the Fourteenth Amendment substantive due process parental right as “fundamental.” Because he determined the law on parental rights to be “unsettled,” Chief Judge Walker held that the individual school officials were entitled to qualified immunity because they were acting within the scope of their employment and discretionary state authority.REF They would not have known, Walker claimed, that hiding the gender identity information of a minor child from that child’s parents would have violated the parents’ rights.REF

When assessing the actions of the school board, Chief Judge Walker determined that the shocks-the-conscience test was the most appropriate assessment of the school board’s actions, even though the school-wide policy was an exercise of legislative—not executive—authority. He also ignored binding Eleventh Circuit precedent indicating that when fundamental rights are at issue, a shocks-the-conscience analysis is inappropriate; rather, the court should employ a strict scrutiny analysis that balances the interests of both the individual claimant and the state.REF

In his opinion, Chief Judge Walker wrote that “parental rights…are a ‘murky area of unenumerated constitutional rights’ where courts must ‘tread lightly’ to avoid placing important matters ‘outside the arena of public debate and legislative action.’”REF He determined that the failure to seek the parents’ input, and the concealment of their minor child’s gender support plan, were not sufficiently conscience-shocking to violate the parents’ substantive due process rights.

Chief Judge Walker reached this conclusion even though the factors involved arguably satisfy the shocks-the-conscience test: among others, the deliberately intrusive conduct of the school officials and school board exacerbated the student’s mental health concerns. However, Chief Judge Walker determined that because the Littlejohns’ minor daughter had requested the meeting, and because school officials had not publicly accused the parents of abusing their daughter or attempted to interfere with their custodial relationship with her, their conduct was appropriate.

In the end, Walker concluded that the Littlejohns had not pleaded “sufficient facts that demonstrate that Defendants’ alleged conduct was so egregious or created such extraordinary circumstances…that a reasonable jury would be permitted to find that Defendants’ deliberate indifference to their liberty interests shocks the conscience.”REF

The case is currently on appeal to the U.S. Court of Appeals for the Eleventh Circuit.

John and Jane Parents 1

In October of 2020, three parents with children in a Montgomery County, Maryland, high school sued the Montgomery County Board of Education over its gender identity support plan guidelines.

In relevant part, those guidelines state:

It is critical that all MCPS [Montgomery County Public Schools] staff members recognize and respect matters of gender identity; make all reasonable accommodations in response to student requests regarding gender identity; and protect student privacy and confidentiality…. All students have a right to privacy. This includes the right to keep private one’s transgender status or gender nonconforming presentation at school. Information about a student’s transgender status, legal name, or sex assigned at birth may constitute confidential medical information. Disclosing this information to other students, their parents/guardians, or third parties may violate privacy laws, such as the federal Family Educational Rights and Privacy Act (FERPA).REF

As with the other previously mentioned cases, the guidelines kept critical information away from the parents about their child’s gender identity or their need for a “support plan.” In John and Jane Parents 1 et al. v. Montgomery County Board of Education,REF the parents alleged that the guidelines were both facially unconstitutional,REF and unconstitutional as appliedREF to their children, though none of them alleged that their children had gender support plans, were transgender, or were struggling with their gender identity.

While the parents were seeking relief in the form of information about any possible future gender support plan for their children, the parents did not allege that their children were likely to direct the school to refuse to share their gender identity with their families. However, the parents alleged that the parental preclusion policy violated their fundamental right to parent their individual children by violating their right to obtain information about them.

In rejecting the parents’ claim and granting the defendant’s motion to dismiss, Judge Paul Grimm acknowledged that while government actions infringing on a fundamental constitutional right are subject to strict scrutiny analysis, there was no fundamental parental right to be “promptly informed of their child’s gender identity, when it differs from that usually associated with their sex assigned at birth.”REF Grimm noted that the Fourth Circuit has rejected the use of strict scrutiny analysis for parental rights claims based on an alleged substantive due process violation unless an associated allegation of a violation of one’s right to the free exercise of one’s religion is also asserted. So, in employing the lowest-tier rational basis review to the parents’ claims, Judge Grimm determined that the Montgomery County Board of Education had a “legitimate interest in providing a safe and supportive environment for all MCPS students, including those who are transgender and gender nonconforming. And the guidelines [were] certainly rationally related to achieving that result.”REF He likened the parental preclusion policy to curricular or other school policy decisions, which are clearly subject to rational basis review, and held the Board of Education’s policy satisfied that standard.

The plaintiffs cited the Eleventh Circuit’s decision in Arnold v. Board of Education of Escambia County, Alabama,REF in which the court concluded that a “parent’s constitutional right to direct the upbringing of a minor is violated when the minor is coerced to refrain from discussing with the parent an intimate decision such as whether to obtain an abortion; a decision which touches fundamental values and religious beliefs parents wish to instill in their children.”REF But Judge Grimm distinguished Arnold, saying that none of parents in the case before him alleged specific facts regarding the application of the guidelines to any of their children.

Fourth Circuit Appeals Court. On appeal, the U.S. Court of Appeals for the Fourth Circuit did not address the merits of the parents’ claims. Rather, a majority of the three-judge panel determined that the parents lacked standing to bring the challenge in the first place. In an opinion by Judge Marvin Quattlebaum, that was joined by Judge Allison Jones Rushing, the court held that because none of the parents’ children had gender support plans, were transgender, were struggling with the issue of gender identity, or were suspected to be at a heightened risk of considering gender transition, the plaintiffs could not demonstrate that they had suffered an injury in fact and therefore lacked standing.REF While the court recognized that future injuries can confer standing, the claimed harm “must not be so speculative as to lie ‘at the end of a highly attenuated chain of possibilities.’”REF

The court noted that injury-in-fact requires more than a conceivable potential injury, but a current injury, a certain-impending injury, or a substantial risk of a future injury, and it reasoned that the parents’ fear was speculative at most.REF The court reasoned that for the parents to be injured, a chain of events would have to occur: Their children would have to identify as transgender or gender-nonconforming, they would have to disclose their gender identity to the school, the school would need to create a support plan, and the school would need to deem the parent unsupportive or the child to refuse disclosure to the parent.REF That, the court wrote, was too attenuated to meet the legal standard for an injury sufficient to confer standing.

While the court did acknowledge the Board of Education’s policy was “staggering,” and that it might be “repugnant as a matter of policy,”REF it noted that “just because a policy or practice exists and is unconstitutional does not mean a particular plaintiff has been injured and has standing to challenge it.”REF Judge Quattlebaum acknowledged that the parents’ strongest support for standing was its reliance on Parents Involved in Community Schools v. Seattle School District No. 1, because there, too, the harm (being forced to participate in an unconstitutional, race-based system) depended on a chain of future events involving the decisions of others.REF But the court determined that nothing about Parents Involved applied beyond the context of equal protection claims, and it did not read the opinion so as to abrogate the “certainly impending” test that applies to cases involving future injuries.REF

The court declined to hold that a plaintiff has standing anytime he or she is forced to participate in an unconstitutional policy, regardless of whether there was an active associated injury, because doing so would open the doors to conflicts that should be resolved by legislatures, not the judiciary.REF Ignoring that the Supreme Court does not always require a “plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat,”REF the majority vacated the case and remanded it to the trial court with instructions to dismiss the complaint.

Neimeyer Dissent. In dissent, Judge Paul Neimeyer took issue with the majority’s finding that the plaintiff parents lacked standing, relying specifically on Parents Involved and the Supreme Court’s finding of standing even though the harm in that case was only speculative. Writing that “parents whose children are subject to the policy must have access to the courts to challenge such a policy.” He argued that the majority was reading the complaint in an unfairly narrow way and pulling the discussion of gender issues “from the family circle to the public schools without any avenue of redress.”REF The policy, Neimeyer argued, directed staff to engage in a form of cover-up by providing that “[s]chools should seek to minimize the use of permission slips and other…forms that require disclosure of a student’s gender or use gendered terminology.”REF In shutting parents out from an open relationship with their children, the parents had experienced a redressable injury and had standing, because standing depends “considerably upon whether the plaintiff is himself an object of the action…at issue.”REF

Because the complaint alleged a broader constitutional injury—that of usurping parental roles—it was dispositive that the guidelines were not voluntary but mandatory and applied to all students in the system. As a result, the parents now had to “contend with the worry that school officials might…deem ‘unsupportive’ the Parents’ view that their child ought to transition only after professional psychological or psychiatric consultation.”REF He also charged the majority with suggesting that “injury under the Due Process Clause yields rank to injury under the Equal Protection Clause”—something not supported by the Parents Involved decision, or in any decision from the Supreme Court, since.REF

Judge Neimeyer’s dissent is in line with the notion that “federal courts have long held that the deprivation of a constitutional right [is] irreparable.”REF He also recognized that intangible harms can and do give rise to standing—such as, for example, the disclosure of information and intrusion upon seclusion.REF Developing and implementing a gender transition plan for minors without their parents’ knowledge does not simply implicate a curricular or policy decision, but goes to the “very personal decision-making about children’s health, nurture, welfare, and upbringing, which are fundamental rights of the Parents.”REF

Prior to the publication of this Legal Memorandum, the parents in this case filed a petition for a writ of certiorari with the Supreme Court in which they asked the Court to address two discrete questions:

1. When a public school, by policy, expressly deceives parents about how the school will treat their minor children, do parents have standing to seek injunctive and declaratory relief in anticipation of the school applying its policy against them?
2. Assuming the parents have standing, does the Parental Preclusion Policy violate their fundamental parental rights?REF

Their petition was dismissed on May 8, 2024.REF

Within four weeks, however, the parents in a similar case originating in the U.S. Court of Appeals for the Seventh CircuitREF filed their own petition for a writ of certiorari based on a facial challenge to the constitutionality of the gender support policies of the Eau Claire, Wisconsin, Area School District. As had the parents in John and Jane 1, the parents in Parents Protecting our Children v. Eau Claire Area School District are asking the Court to address whether, when a school district adopts an explicit policy to usurp parental authority regarding a child’s expression of gender identity—and to conceal that information from parents—the parents subject to that policy have standing to challenge it.REF

The lack of clarity in legal standards, the debate over “social transitions,” and the proliferation of gender support plans that preclude parents from receiving critical information about their own children all cry out for Supreme Court review. The Court has the chance to clarify the boundaries of parental rights—something not undertaken by the Court for over two decades—and should grant review in Parents Protecting our Children v. Eau Claire Area School District to clarify how “fundamental” the parental right is. The result will determine whether, when school gender policies and parental rights collide, parents are relegated to powerless bystanders in the development of their own children’s very identities.

Conclusion

Conflicting federal court opinions on parents’ right to know about their child’s desire to transition,REF the modern zeitgeist on gender ideology, and the sudden surge in transgender-identifying adolescent populations argue for more parental involvement, not less. As the Supreme Court noted in Parham v. J.R., “parents possess what a child lacks in maturity, experience and capacity for judgment” and the “natural bonds of affection lead parents to act in the best interests of their children.”REF Parents’ fundamental constitutional rights have been recognized by the Supreme Court as superior to the interests of a public school.REF But for more than 1,000 school districts across the country, this understanding has been lost and parental rights have been ignored.REF

One’s gender identity implicates “medical, social, and policy” considerations.REF And school gender identity policies and “support plans” involve similarly significant considerations.REF A minor child’s parents are not only in the best position to address that child’s self-professed gender identity, but they also have the right to do so. These policies do not address mere curricular or administrative policies, but rather, concern matters that strike directly “at the heart of the parental decision-making authority on matters of the greatest importance.”REF The contours of the parental right originate in the nation’s history and tradition, intrinsic to human rights.REF And the principle that parents have the right to direct the upbringing, care, and education of their children has philosophical and legal roots dating back centuries. The institution of the family predates the Constitution itself.REF

As the Supreme Court held in Troxel v. Granville, the parental right is the oldest of the fundamental liberty interests ever recognized by that Court. If that is to mean anything in the future, parents must act now to force school districts to change these policies, urge state legislatures to prohibit them, and, if necessary, to defend their rights in court.

Sarah Parshall Perry is a Senior Legal Fellow in the Edwin J. Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Thomas Jipping is a Senior Legal Fellow in the Meese Center.