Law & Courts

District Can’t Let Students Change Pronouns Without Parental Consent, Judge Rules

By Mark Walsh — October 05, 2023 4 min read
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A Wisconsin state judge has invalidated a school district’s informal policy of affirming a student’s request to transition to a different gender identity, including adopting a new name and pronouns, without parental consent and over parents’ objections.

The ruling is the latest in a wave of conflicting court decisions addressing LGBTQ+ and gender identity issues in public schools, including a recent federal appeals court decision blocking a school district’s policy requiring respect for students’ gender identities, though other courts have sided with transgender students on a range of issues.

Judge Michael P. Maxwell of Waukesha County Circuit Court grounded his decision in parents’ rights, under the 14th Amendment’s due-process clause and the state constitution, to direct the upbringing of their children. But he emphasized that he was basing that holding on parents’ right to make medical and health care decisions for their children, not their right to direct their children’s education.

“This is undisputedly a medical and healthcare issue,” Maxwell said in his Oct. 3 decision in T.F. v. Kettle Moraine School District. “As such, the school district went against the parents’ wishes on how to medically treat their child. This directly implicates an infringement against the parental autonomy right to direct the care for their child.”

The ruling stems from a lawsuit filed against the 3,600-student Kettle Moraine district by the parents of the student identified as “T.F.,” who was assigned female at birth and at age 12 in 2020 began questioning their gender, court papers say. The parents withdrew their child from the Kettle Moraine district and enrolled them in a mental health center, which affirmed that they were a transgender boy and encouraged them to transition.

As T.F. prepared to return to school, the parents told school officials that they did not support an immediate gender transition for their child and they wanted the school to use T.F.’s legal name and female pronouns.

The lawsuit says the school principal informed the parents that school staff members would refer to T.F. by whatever name and pronouns the student requested, even over the parents’ objections. The parents withdrew T.F. from the school district, and their suit contends T.F. later chose not to transition to male.

The parents, along with another family, sued the district with the aid of the Wisconsin Institute for Law and Liberty and the Alliance Defending Freedom, a national group that has battled transgender-supportive policies in schools and asserted religious rights in the U.S. Supreme Court.

Their suit cited only a parental rights claim under the Wisconsin Constitution, though it describes that parental right to direct the upbringing of their children are intertwined with U.S. Supreme Court decisions upholding such a right under the 14th Amendment.

The judge has some critical words for the school district

In striking down the district’s informal, unwritten policy, Maxwell cited affidavits introduced by the plaintiffs from two physicians who asserted it would be unsound to allow a child to have gender roles that were different at home and at school. The judge also credited the doctors’ assertions that no professional medical organization has suggested that a school district should address a child’s “alternative gender identity without parental consent and buy-in.”

“The school district could not administer medicine to a student without parental consent,” the judge said. “The school district could not require or allow a student to participate in a sport without parental consent. Likewise, the school district cannot change the pronoun of a student without parental consent without impinging on a fundamental liberty interest of the parents.”

Maxwell noted that the school district defended its actions in part as based on a fear that not respecting the name and pronouns T.F. sought to use might place it in violation of Title IX of the Education Amendments of 1972, the federal law that bars sex discrimination in federally funded schools.

Several guidance documents and a proposed formal regulation from President Joe Biden’s administration interpreting Title IX call on schools to respect transgender students’ gender identities. Maxwell noted that a federal district judge in Texas has blocked the informal guidance letters. He said that other recent federal court rulings have not clearly established that a school district would violate Title IX by failing to recognize a transgender student’s name and pronouns.

“The school district has hidden behind claims of no parental right or unfounded Title IX issues rather than give parents in their district what they deserve—clear guidance on how the district intends to handle these controversial issues,” the judge said.

In a statement, Kettle Moraine Superintendent Stephen Plum said the district “will continue to work with all students, parents, guardians, and staff to clarify expectations. We respect the rights of parents and require written parental consent if and when using student names or pronouns that are at odds with their sex at birth.”


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