Law & Courts

Lawsuit Alleges Maine School District Violated Parental Rights Over Child’s Social Transition

By Eesha Pendharkar — May 04, 2023 | Corrected: May 04, 2023 9 min read
Speaker of the House Kevin McCarthy, center, with Rep. Elise Stefanik, R-N.Y., left, and Rep. Julia Letlow, R-La., speaks about proposed legislation dubbed the "Parents Bill of Rights," Wednesday, March 1, 2023, on Capitol Hill in Washington.
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Corrected: An earlier version of this story misspelled the last name of Joe Setyon.

A Maine parent is suing her child’s school district in federal court for allegedly violating her parental rights by allegedly failing to inform the mother of her child’s social transition—part of a handful of legal battles over pronouns across the country.

The parent, Amber Lavigne, is suing the Great Salt Bay Community school board, two social workers, the principal of the Great Salt Bay Community School, and the superintendent of the school district for allegedly violating her 14th Amendment rights to “control and direct the care, custody, education, upbringing, and healthcare decisions” of her child, says the lawsuit filed in federal court in late March.

LGBTQ+ and civil rights advocacy organization leaders say this lawsuit is part of a nationwide attack on transgender students. However, the plaintiff’s lawyers argue that this case is not about transgender students’ rights but a parent’s right to direct the upbringing of her child and stay informed about developments such as a social transition.

The situation has led to three threats of violence against the Great Salt Bay school district, according to statements by the school board and administrators.

State- and district-level policies across the country have attempted to restrict transgender students’ use of pronouns, names, and restrooms aligned with their gender identities, as well as their participation in athletics. They’ve also limited access to books and curricular resources that make them feel represented, according to experts from LGBTQ+ advocacy groups.

(The chosen name and pronouns of Lavigne’s child are unknown.)

Lavigne is suing the district for failing to inform her that a school counselor used the pronouns and name her child chose to go by at school, which were inconsistent with the name and pronouns associated with the child’s gender assigned at birth. The counselor also allegedly gave the child a chest binder—a tight-fitting garment worn around a chest to flatten breasts—and told the child they were not required to tell their parents, and that the counselor would not reveal that information, either, according to Adam Shelton, who is representing Lavigne on behalf of the Goldwater Institute, a conservative think tank in Arizona.

The Great Salt Bay Community district did not respond to multiple requests for comment.

Lavigne is also seeking a declaration from the judge that the Great Salt Bay Community School Transgender Student Guidelines, which were established to support transgender and gender nonconforming students, are unconstitutional because they do not mandate informing parents of decisions to provide “gender-affirming” care to a student, such as calling a child by their preferred name and pronouns or giving them garments like chest binders, along with instructions for use.

“We’re not arguing that a counselor or that this counselor must have told [Lavigne] that her child was experiencing questions about her gender identity,” Shelton said, explaining that the Goldwater Institute isn’t asking for school employees to become “tattletales” to parents.

“What we’re saying is that, once the counselor took certain steps, mainly the giving of the child a chest binder, that’s when that needed to be kicked in. ... Once school officials take affirmative steps on something that directly implicates a child’s mental health or physical well-being, that’s when there’s an affirmative duty to tell parents under the 14th Amendment.”

Lavigne is seeking a declaratory judgment by the court that the district’s “policy, pattern, and practice of withholding or concealing from parents, information about the child’s psychosexual development, including their asserted gender identity, absent some specific showing of risk to the child,” violates the due process clause of the 14th Amendment.

It also wants an injunction preventing the school from calling any of Lavigne’s children by a different name or different pronouns without her express consent.

Plaintiffs say it’s about parental rights, not trans rights

The district’s Transgender Student Guidelines, which it adopted in 2019, requires school staff to follow a child’s preferred pronouns if they are different from the ones assigned at birth, allow them to use restrooms, and align with the dress code in a way which is consistent with their gender identity.

The guidelines are meant to “foster a learning environment that is safe, and free from discrimination, harassment and bullying” and “assist in the educational and social integration of transgender students,” according to the policy.

Lavigne’s primary objection to the guidelines is that they don’t mandate school staff to involve parents in decisions about their child’s gender-affirming care treatment, demonstrating neglect of parents’ 14th Amendment rights to direct the education, upbringing, and health-care decisions of their children.

The plaintiff contends that the guidelines allow the district to “adopt procedures for the treatment of transgender students without consultation of, and while withholding or concealing information from, parents,” even when there is no evidence of risk to the child. The school district will continue violating parents’ rights if it follows the policy, the lawsuit argues.

However, Shelton from the Goldwater Institute says the plaintiff isn’t raising objections to the transgender-student guidelines for the type of support they want to provide to students.

“It’s not a transgender issue ... about whether or not gender-affirming care should be provided or not provided,” he said. “It’s an issue about whether or not parents should be involved with this sort of decision-making process.”

Before the lawsuit was filed, the Goldwater Institute sent a letter to the district asking for a policy change that would require school officials to tell parents whenever they make a decision or take affirmative steps that directly implicate or affect a child’s mental health or physical well-being, Shelton said.

The district did not engage with the letter, he said.

The role of schools should be to protect students’ rights, experts say

Teachers and counselors aren’t meant to be surveillance officers for students, said Gia Drew, a former teacher and the director of Equality Maine, an LGBTQ+ rights advocacy organization.

“Schools’ purpose is to make sure people feel safe for who they are when they’re at school, and it sounds like this school district was doing what they felt was in the best interest of the child,” Drew said.

“If that student felt that their parents weren’t ready for that conversation yet, the school was just following the lead of the young person, and that’s what schools are supposed to do.”

Districts across the country have been working to support students’ identities, according to Chris Erchull, a lawyer for GLAD, a national legal organization defending LGBTQ+ rights.

Parents have filed lawsuits in several states, including Maryland, Massachusetts, and New Hampshire, that attempt and have attempted to target students’ gender identity and expression for special scrutiny and special reporting requirements, Erchull said. A small minority of parents want to challenge that kind of learning environment because that is not what they want for their children, he said.

“Nothing that the school has done in Maine or anywhere else has prevented the parents from being able to communicate with their children about gender identity and about how they’re expressing their gender identity at school,” Erchull said.

“So really, this is actually a nonissue. It’s just being framed as a parental rights issue, but it’s really about trying to find ways to go after trans kids.”

Shelton from the Goldwater Institute said that the organization has not taken any stance on gender affirming care or transgender rights bills across the country, but is focused on parents’ rights to transparency.

School has received threats due to the allegations

Lavigne spoke publicly at a Dec. 14, 2022, school board meeting about the violation of her parental rights, according to the lawsuit. The school district made its first public statement on Dec. 19, emphasizing the importance of a “safe, welcoming, and inclusive” educational environment for all students, not mentioning Lavigne or her complaints directly.

Days later, an emailed bomb threat was sent to the district, claiming that bombs had been placed in the building and in the homes of four employees, according to the Lincoln County News. The threat was investigated and proved to be false, but it forced an evacuation of school buildings, according to the newspaper.

In January, the district received a similar threat, which again proved to be a hoax. The district released a statement the next day, blaming “false narratives” for the threat.

“Unfortunately, that false narrative has directly given rise to the bomb threats that have disrupted our students’ education over the past several weeks,” the statement said. “Those promoting this false narrative are apparently disturbed by our schools’ ongoing and steadfast commitment to providing all students with safe and equal access to educational opportunities without discrimination because of, among other things, sex, sexual orientation, or gender identity. As the Maine Human Rights Act requires.”

“While parents generally have a right to access the educational records of their children, the board must balance this right with the right of students in Maine,” the statement continued. “Who, regardless of age, have the right to access mental health services without parental consent, and the right to establish their own confidential counseling relationship with a school based mental health services provider.“

In February, the district received a third bomb threat, forcing another evacuation. A few days after that threat, Principal Kim Schaff wrote to Great Salt Bay Community School families, explaining the rights of students and staff based on several Maine laws, including that school counselors or school social workers can’t be required to divulge information gathered during a counseling session with a student.

“A misunderstanding of these laws pertaining to gender identity and privileged communication between school social workers and minor clients has resulted in the school and staff members becoming targets for hate speech and ongoing threats,” Schaff said in the letter.

“The Goldwater Institute does not condone any threats made against schools or school officials,” said spokesperson Joe Setyon in a statement. “Anyone making such threats should be held accountable by the appropriate authorities.”

Threats to school districts have increased across the country over the last year, according to the FBI.

“Because of all sorts of political reasons mostly, some of the opposition … a very loud, vocal minority … has latched onto this anti-LGBTQ+ or anti-trans agenda and are using that as an issue, and unfortunately, kids are paying the price, and teachers who are supportive are paying the price,” said Drew of Equality Maine.

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