The Courts and the Culture War

Posted: March 7, 2023 / Written by: Elizabeth Wolstein / Category Civil Litigation

Maryland District Court Rejects Challenge To School Transgender Policy Allowing Withholding Of Information From Parents

Welcome to Schlam Stone & Dolan’s new blog, “The Courts and the Culture War.” In this blog we will explore litigation of culture war issues in the federal and state courts. We aim both to inform on what issues are being litigated and how the courts are handling them, and stimulate further thought on the significance and implications of notable decisions.

Today’s inaugural post considers John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., No. 8:20-3552-PWG, 2022 WL 3544256 (D. Md. Aug. 18, 2022), in which a group of parents challenged a public-school transgender policy.  Under the School Board’s “Guidelines for Student Gender Identity,” schools could exclude parents from the school’s development of a “gender-support plan” and refrain from communicating with parents about their child’s transgender or gender nonconforming presentation “if the student either expects or knows their parents to be unsupportive.”  Id. at *3.  The Guidelines gave students a right to privacy as against their parents, allowing the school to withhold information from parents about their child’s transgender identity if the child did not authorize disclosure.

The plaintiff-parents asserted federal and state statutory and constitutional facial challenges to the Guidelines.  The claims focused on the schools’ ability, under the Guidelines, “to circumvent parental involvement in a pivotal decision affecting their children’s care, health, education, and future,” by enabling school personnel to let students “transition socially to a different gender identity at school without parental notice or consent.”  Id. at *1. The parents claimed that this policy encouraged students to distrust their parents and advanced a particular position on gender identity by excluding parental input.  Id. at *6.  Thus, for their substantive due process challenge, the parents alleged that the Guidelines violated their “fundamental right to direct the care, custody, education, and control of their minor children under the Fourteenth Amendment.”  Id. at *4.

Parents Have No Fundamental Right To Be Informed Of Their Child’s Transgender Socialization

The court framed the substantive due process question as whether the parents have a “fundamental right to be promptly informed of their child’s gender identity, when it differs from that usually associated with their sex assigned at birth, regardless of their child’s wishes or any concerns regarding the detrimental effect of disclosure may have on that child.”  Id. at *7.  With the issue thus defined, the reader may not be surprised to learn that the court held there was no such fundamental right; that rational basis scrutiny therefore applied; and that the Guidelines survived rational basis scrutiny because the School Board had a legitimate interest “in providing a safe and supportive environment” to transgender and gender nonconforming students.  Id. at *13. 

The court acknowledged that parents have a “fundamental liberty interest” in “the right to direct the upbringing and education of children under their control.”  Id. at *7.  According to the court, however, the Supreme Court has never “define[d] the precise boundaries” of that right, or “expressly determined the appropriate standard of constitutional review for claims involving parental rights in the education context.”  Id. at *7, *8.  The court explained that under Fourth Circuit precedent parental rights are only fundamental “when those rights combine with First Amendment free exercise concerns.”  Id. at *8.

Did The Court Address The Parents’ Challenge Head On?

Given the court’s view that no fundamental right could be implicated without an accompanying free exercise concern, the court’s framing of the right at issue at an extreme degree of specificity was probably not outcome determinative, since the parents raised no free exercise claim (and could thereby be excluded from strict scrutiny on that basis).  But did the court’s identification of the right at issue accurately reflect where the due process violation lay according to the parents, and thus accurately reflect the right to be balanced against the state’s interest? 

Not really.  The parents’ chief complaint was not that they were not being “promptly informed” of their child’s transgender presentation, but that the Guidelines required the school to withhold that information altogether if the child believed the parents would not be supportive.  The Guidelines were unmistakable in saying so.  The policy on “communication with families,” for example, required school staff to “ascertain the level of support the student either receives or anticipates receiving from home” before contacting parents, and states only that the school will try to include the family in planning for the student “if possible,” based on a number of factors.  Id. at *3.  The school was only allowed to involve parents in development of a gender support plan “if the family is supportive of the student.”  The Guidelines even created a right to privacy in students as against their parents, citing the Family Educational Rights and Privacy Act (FERPA), see id. at *3, which in reality provides parents with rights of access to their children’s records and requires parental consent to disclosure of their children’s information.  See U.S. Department of Education summary here:   

Plainly, then, the Guidelines allowed for parent involvement only if the parents were supportive of their child’s transgender status.  If the parents had a different viewpoint, or the student merely said they did, the school could decline to inform parents of their child’s gender evolution and the school’s accommodation, if not facilitation, of it.  The court declined to grapple with this aspect of the Guidelines—the heart of the parents’ challenge—concluding that the Guidelines could not be understood to exclude parents since they “encourage familial involvement” “whenever possible”—“unless a student indicates that their family is not supportive of their gender identity.”  Id. at *6.  If the court had met the parents’ challenge head on, would the balancing test come out differently?  Does the state have a legitimate interest in overseeing a child’s socialization to the opposite gender without informing parents of what the school is doing? 

Parents’ Appeal To Be Argued March 9, 2023

The parents’ appeal of the district court’s order is set to be argued before the Fourth Circuit on March 9, 2023.  Numerous amici have weighed in on both sides, including religious liberty groups in support of the parents, and 15 blue states (including New York), the ACLU, and LGBTQ advocacy groups in support of the School Board.  Check back later this month for an update.