Are school officials obligated to inform parents if students confide that they’re struggling with how they feel about their gender? What about if they want to use a different name or gender pronoun? Or if they simply show signs of gender-nonconforming behavior?
The answer to those sensitive questions is now being weighed as part of a handful of state or federal court cases—in what promises to further inflame legal and legislative battles that are raging across the nation about transgender rights.
In each of the lawsuits, the parents allege that school officials followed formal or informal policies, guidelines, or “gender support” plans that permit students to choose new names or pronouns, or adopt a different gender identity without their parents’ consent. In some cases, schools have actively deceived parents or refused to abide by their wishes, they claim.
Those actions, they say, are violations of the U.S. Constitution’s 14th Amendment—which broadly gives parents the right to direct their child’s upbringing, health, and welfare—or of state constitutions, which rely heavily on the federal equal-protection language and case law.
“The central issue in the case is parental rights to their children and knowing what’s going on in the school with their children, and by this policy, that is being denied,” said Rick Claybrook, a lawyer representing the parents in a lawsuit against the Montgomery County, Md. school district. “Kids have their parents to protect them because they’re not able to do so until they reach maturity, and I think often will misunderstand whether the parents are supportive or not.”
For school administrators, the tension is difficult to square because transgender students constitute a uniquely vulnerable—and growing—group. There are no firm estimates, but based on a small population survey the Centers for Disease Control and Prevention concluded that a little less than 2 percent of high school students identify as transgender.
Research shows that transgender adolescents feel less safe at school, have higher rates of suicide ideation, and are disproportionately represented among unhoused youth, at least partly due to rejection at home. Conversely, affirming transgender students can improve their mental health and academic outcomes.
Given that context, LGBTQ rights organizations say they’re concerned that at base the lawsuits aren’t so much about legal clarity as they are further advancing a legislative agenda that’s already well underway.
The lawsuits, they point out, have been filed as states debate and enact new laws that restrict transgender students’ ability to play on sports teams that align with their gender identity, restrict what teachers can teach about gender identity, and require schools to inform parents if students show signs of discomfort with their gender.
“I can’t help but recognize that although ‘parents’ rights’ have been proposed as the basis and framework for a lot of these things, a larger concern is not necessarily parents’ rights, but parental fear of LGBTQ people, and trying to control access to that by young people,” said Kell Olson, a staff attorney at Lambda Legal, an organizations specializes in LGBTQ rights cases. (It is not involved in any of the lawsuits.)
Scope of the lawsuits
In a review of news clips and legal filings, Education Week found about a half-dozen lawsuits. The first appears to have been filed against the Madison, Wis. district in early 2020; other lawsuits have been filed against the Montgomery County, Md., Kettle-Moraine, Wis.; Leon County, Fla.; and the Ludlow County, Mass. school districts.
They are about evenly split between state and federal courts. One pending lawsuit against the Spreckels Union district in California was filed under the California Tort Claims Act—a step plaintiffs have to take before formally suing public entities in that state.
At their heart, each of the lawsuits get at a scenario that is both increasingly common and poses a difficult challenge for educators: What should schools do when a child confides in an educator—or shows signs that they might be struggling —with gender identity?
Resolving that puts administrators in a difficult position that falls squarely in the middle of their ethical, legal, and parental responsibilities. They need to balance helping a child who may be upset or depressed about their identity, avoid stigmatizing such students through inaction, and be responsive to the child’s parents—some of whom may be uncomfortable about having an LGBTQ child.
The specifics of each case show instances in which parents and school officials had widely divergent opinions of what should happen.
In Kettle Moraine, the parents allege that the district said it would continue to allow their daughter to use a male name and pronouns even when they protested, ultimately leading them to pull her out of school. In Ludlow, the parents say that after getting their child a counselor to help her deal with same-sex attraction, school officials disregarded an email asking them not to continue to talk with her about anything related to her health and permitted her to use different names and pronouns.
And in the California lawsuit, the parents allege that teachers held a secretive LGBTQ club, eventually pushing or encouraging their child to identify as transgender.
The gray areas have been concerning for schools for some time. In an 2016 primer about transgender-related legal issues, the National School Boards Association wrote that when communicating with parents about students’ gender identity, “as school officials, you walk that delicate line balancing the privacy interests of the student versus his or her parents and your legal duties.”
Students’ age, requirements about reporting signs of abuse, and state and federal privacy laws are all considerations they’ll need to take into account, it said.
Do parents have to consent to a student’s social transition?
The lawsuits seek to make those sketchy lines clearer. Parents, they say, need to give their consent to the gender identities or pronoun students assume at school.
Several of the lawsuits also suggest that a student’s decision to begin using new pronouns is effectively the beginning of a medical or health process in which parents should have a say—though the specific links between social transitioning via changing names, a formal medical diagnosis of gender dysphoria, and various forms of gender-affirming medical care are both unclear and highly contested.
(Gender-affirming care is a spectrum of services that usually involves counseling and may involve changing pronouns or dress. Some adolescents go on to take drugs to delay puberty or take cross-sex hormones, though that is rarer. U.S. and international health organizations do not endorse gender-affirming surgery for minors.)
School districts can’t give minor children vaccines or even an aspirin without consent, while parents must agree for their children to take field trips, and sign waivers for them to play school sports, noted Luke Berg, deputy counsel at the Wisconsin Institute for Law and Liberty or WILL, which is representing the parents in the two cases in that state.
“The court should require parental consent before facilitating a transition at school, because it’s such a significant transition, and it can do harm,” he said.
While the legal theories underpinning the cases are similar, the details differ from district to district. The Ludlow, Mass., district, for example, does not appear to have a written policy about how it handles these issues, but the lawsuit claims that it has developed a de facto protocol that prohibits informing parents about the identities children assume.
Parents in the Kettle-Moraine lawsuit allege that school personnel continued to refer to their child using male pronouns rather than the female ones they asked the school to use, though it did not appear to have a written policy. In Madison, the parents took aim at an extensive set of guidelines that includes language saying that disclosing students’ identities could lead to “losing family support and housing,” and that educators might consider “using the student’s affirmed name and pronouns in the school setting, and their legal name and pronouns with family.”
The Leon County lawsuit references a support guide written by the district that, in a Q&A section, said that “outing a student, especially to parents, can be very dangerous to the students [sic] health and well-being. Some students are not able to be out at home because their parents are unaccepting of LGBTQ+ people.”
And in Montgomery County, the parents are taking aim at both written guidelines and a form that prompts an administrator or counselor to ask students whether their parents are aware of their gender identity, and to rate their “support level” on a 1-to-10 scale.
The districts either did not respond to a request for comment or declined to comment, citing ongoing litigation.
In legal filings, the districts offer various reasons why the cases should be dismissed. For one, said lawyers for Montgomery County, no court has decided parents have the right to know about a students’ gender transition, and for another, districts do have a compelling interest in keeping students safe.
“The guidelines express a preference for parental involvement while responding to the need to support students even when family support is lacking,” they wrote.
A rapidly evolving legal landscape
None of the lawsuits have progressed to the trial stage, which makes it hard to know how they might be received on their merits.
What is clear, though, is that there’s currently little existing case law specifically on transgender students, privacy rights, and schools—even as the larger legal landscape about transgender people’s rights is rapidly evolving.
Under the Biden administration, for example, the U.S Department of Education has argued that discriminating against students based on their gender identity violates Title IX, which protects against sex discrimination. It has cited a 2020 U.S. Supreme Court ruling that extended protections against sexual harassment and discrimination in the workplace to gender identity.
The Biden administration is also completing a rewrite of Title IX expected to codify transgender students’ rights in education—setting it up for direct conflict with states that have recently passed restrictive policies.
Elsewhere, while a few courts have ruled that gay students have a reasonable expectation to privacy about their sexual orientation, it’s not clear how far that right extends or whether it includes gender identity. And in a 2013 ruling, a federal appeals court concluded that there was no clearly established privacy rightunder the 14th Amendment precluding school officials “from discussing with a parent the student’s private matters, including matters relating to sexual activity of the student.”
We know about thousands of districts across the country that successfully navigate these issues and provide supportive and affirming environments for students in coordination with parents.
All of that uncertainty has collided with steps districts have taken in the past decade to make schools more welcoming for gay and trans students—some prompted by gay-rights groups.
GLSEN, a group that supports LGBTQ students, publishes a model policy for administrators that, among other things, reads that “staff or educators shall not disclose any information that may reveal a student’s gender identity to others, including parents or guardians and other staff, unless the student has authorized such disclosure, … This disclosure must be discussed with the student, prior to any action.”
GLSEN didn’t respond to requests for comment.
But Olson noted that hundreds of other school districts have managed to strike an appropriate balance on these issues.
“We know about thousands of districts across the country that successfully navigate these issues and provide supportive and affirming environments for students in coordination with parents,” he said. “The focus should be on supporting reasonable policies, rather than a knee-jerk reaction that says we need to start suing schools.”
Complicating matters still further, a handful of states have already passed laws or issued guidelines about transgender students and privacy, which means that what’s currently permissible in one state isn’t necessarily in another.
New Jersey law specifically allows students to be called by the name and pronoun they prefer, and state guidance says that “parental consent is not required.” Virginia, in 2020, issued a model policy that reads, “if a student is not ready or able to safely share with their family about their gender identity, this should be respected,” though unlike in New Jersey, that recommendation doesn’t carry the force of law.
Echoes of the parents’ rights’ framing
Claybrook said if the parents win in the Montgomery County case, it wouldn’t mean chucking out most of the district’s guidelines. It would only mean that the district must inform parents if a child confides that they want to socially transition at school.
“You’re basically saying that school officials, based on maybe half an hour with a student, will decide they have abusive or neglectful parents. There are provisions in Maryland and every other state to deal with abusive and neglectful parents, and that requires due process to be followed,” he said.
“There are certainly, of course, instances when the parents are notified, and that is fine. We’re just worried about the ones where [educators] make a decision based on that 1-to-10 decision in that form and decide they’re not supportive. What scores does a parent have to get before they’re notified? A 6? Or does it take a 9 or a 10?”
Legal issues aside, much of the rhetoric in the lawsuits echoes that of a resurgent “parents’ rights” movement in education that has largely cast schools as sites of indoctrination on race and gender identity matters. In the lawsuits, the parents variously claim that schools are hiding things from them, deceiving them by using one set of pronouns with students and another when addressing parents, or operating LGBTQ clubs in secrecy that might sway students’ perception of their gender identities.
The clear subtext to such arguments is that the increase in the number of people who identify as transgender has a social component.
“I think one of the theories is that this is in part at least socially driven, that students that struggle with this are affected by the messages they hear in schools, the messages they hear from their peers, and there are kids who struggle with this who would not have were it not from the messaging they hear every day on schools from social media,” said Berg of WILL.
There is also a distinct conservative bent behind the legal firepower. The Alliance Defending Freedom and WILL, which are representing the two sets of parents in Wisconsin, have supported other parents-rights cases and related legislation, such as curriculum-transparency laws aimed at uncovering supposed indoctrination in schools.
The lawsuit that has progressed the furthest so far is the one against the Madison district, where a state court judge issued a preliminary injunction preventing the district from using its guidelines “in any manner that allows or requires district staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school.”
In May, the Wisconsin Supreme Court will hear an appeal in the case about whether the parents bringing the suit can remain anonymous.
A version of this article appeared in the June 01, 2022 edition of Education Week as Are Teachers Obliged to Tell Parents Their Child Might Be Trans? Courts May Soon Decide