Tuesday rendered a crucial victory to parents defending their right to be notified if a school district is transitioning their child's gender. Across the country, school boards are instituting gender-affirming policies that exclude parental notification or consent, and parents and conservative legal entities are challenging them. An August ruling that was against parents being notified came down from the Fourth District of the U.S. Circuit Court of Appeals.
A federal appeals court on Monday ruled that a group of parents could not challenge a Maryland school district's policy against telling parents if their children identify as transgender or gender nonconforming.
A 4th U.S. Circuit Court of Appeals panel ruled 2-1 that three parents in Montgomery County, Maryland, lacked standing to challenge the policy because they had not alleged their children were transgender in the first place.
The policy, which the Montgomery County Board of Education adopted for the 2020-2021 school year, permitted schools to develop gender support plans for students to ensure they "feel comfortable expressing their gender identity."
The policy directs school personnel to help transgender and gender nonconforming students create a plan that addresses their preferred pronouns, names and bathrooms, and bars staff from informing parents of those plans without a student's consent.
Lawsuits are pending challenging similar policies in other states. The Maryland case was the first to be argued before a federal appeals court.
It may be the first, but it won't be the last. The Alliance Defending Freedom helped to spearhead this victory in Wisconsin.
💥FIRST IN THE NATION💥
— Dan Lennington (@DanLennington) October 3, 2023
Court rules in favor of parents and against school district that secretly transitions children. Schools can no longer change a child's name & pronouns w/o parental consent.
Major victory by @WILawLiberty & @ADFLegal
More here: https://t.co/PoJzvvQ0pN pic.twitter.com/Kstyr3jHd6
A Waukesha County Circuit Court ruled Tuesday in favor of Wisconsin parents, deciding that a Wisconsin school district “abrogated” parents’ rights when it decided to socially “affirm” their daughter as a transgender boy against their wishes.
Represented by Alliance Defending Freedom and the Wisconsin Institute for Law and Liberty, two sets of Wisconsin parents had sued Kettle Moraine School District, accusing the district of violating their parental rights by “adopting a policy to allow, facilitate, and affirm a minor student’s request to transition to a different gender identity at school without parental consent and even over the parents’ objection.”
Circuit Court Judge Michael Maxwell granted the parents’ motion for summary judgment Monday, ruling on the merits of the case without a trial. His ruling and order, which the clerk filed Tuesday, said that the case dealt with “whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children.”
“The well established case law in that regard is clear,” he ruled. “Kettle Moraine can not.”
This is huge, particularly in light of California doing the opposite: suing parents and school boards for upholding parental rights to be notified if the school is transitioning their child to another gender. Should Kettle Moraine proceed with an appeal of the ruling to the Wisconsin Supreme Court (SCOWI), SCOWI could vacate it and send it back to the Circuit Court. SCOWI has since moved to the left, so this is not beyond the realm of possibility. In May 2023, they vacated a similar case against the Madison Metropolitan School District (MMSD) which challenged this district's transgender policy.
Although the dissent presents the legal issue as cut and dried, the claim here raises novel legal questions that deserve careful consideration: how does the generally recognized but vaguely defined unenumerated right to parent one’s child intersect with a school district’s policy on sex and gender expression? The answer to this question could have far reaching impact beyond this case. But given the procedural posture, we’re not at the point of addressing these issues head on. The dissent is unmoved, and suggests procedural questions should not prevent us from forging ahead, resting on a conception of the judicial role that merits unpacking.
From the careful wording of this ruling, it appears that this higher court would rather not touch it. They know it has become a hot potato with clear precedent-setting implications. No doubt, this issue will ultimately end up in the highest court of the land. However, this ruling in Waukesha, with parents who showed their faces publicly (unlike the Madison case), could force SCOWI to eventually unpack the case on its merits. In the meantime, parents at Kettle Moraine and probably throughout the district can breathe a sigh of relief that their rights will be taken into consideration... at least for now.
Another set of parents mentioned in the suit expressed concerns that the district would push their two children toward gender transition in the same fashion.
“I am so grateful the Court has found that this policy harms children and undermines the rights of parents to direct the upbringing of their children,” Tammy, the mother of one of the children named in the lawsuit, told The Daily Signal. (She asked that her last name be withheld to protect the family’s privacy.)
“Our daughter experienced increased anxiety and depression and her school responded to this by disregarding our parental guidance,” she explained. “Since leaving the school and allowing our daughter time to work through her mental health concerns, she has been able to healthily thrive and grow. Parents should be concerned when school districts disregard their concerns and override the voice and role of parents.”
My colleague Jeff Charles has written extensively on this issue, and what he said back in March was almost prophetic.
Make no mistake: This is a wholesale effort to have the government usurp much of the role of being a parent. Progressives are on a mission to wrest this responsibility from adults and place it in the hands of the state. If there isn’t enough resistance, they will succeed.
Parents and communities overturning leftist school boards is being done, but it is slow work. So, mark my words: the battle for parents' rights and authority over their children and their care will continue to play out in the courts and ultimately end up in the Supreme Court of the United States. We should pray that the conservative majority remains intact towards that day.
