A federal appeals court has rejected a parental rights-based objection to a Massachusetts school district’s policy of allowing students to determine whether their parents should be notified about gender transitions and their choice of new names and pronouns.
The policy “plausibly creates a space for students to express their identity without worrying about parental backlash,” said a unanimous three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston. “By cultivating an environment where students may feel safe in expressing their gender identity, the protocol endeavors to remove psychological barriers for transgender students and equalizes educational opportunities.”
The Feb. 18 decision in Foote v. Ludlow School Committee comes amid a conservative-led backlash to school policies supporting transgender students, including President Donald Trump’s recent executive orders declaring that there are only two sexes and instructing his administration to develop policies to prohibit public schools from assisting gender transitions and to bar transgender students from girls’ sports. The U.S. Supreme Court, with a six-justice conservative majority, has signaled a growing interest in transgender issues in education.
The Trump executive orders were not an issue in the case of a middle school student in the 2,200-student Ludlow, Mass., school system. During the 2020-21 school year, an 11-year-old 6th grader identified in court papers as B.F., who was assigned female at birth, began to question their gender identity.
Parents seek to handle their child’s feelings about gender without the school
The student approached a teacher and discussed their feelings of insecurity and low self-esteem, as well as their feelings about their gender identity and sexual orientation. The teacher contacted the student’s parents to let them know.
B.F.’s mother soon sent an email to district officials and the student’s teachers that said, “I appreciate your concern and would like to let you know that her father and I will be getting her the professional help she needs at this time. With that being said, we request that you do not have any private conversations with [B.F.] in regards to this matter.”
But in the meantime, B.F. sent an email to their teachers and counselor announcing that “I am genderqueer” and that they were changing their first name (leading to the new initials G.F.).
The school began following the district’s protocol, which calls for teachers and others to use students’ chosen names and pronouns and instructs them not to inform parents about their child’s expressions of gender without that student’s consent. The unwritten policy was prompted by 2012 guidance from the state Department of Elementary and Secondary Education meant to support transgender students.
The parents soon found out about the change and complained to the district superintendent. They believed the school was aiding in a social transition that amounted to a form of medical and mental health treatment. When the district did not back down from its protocol, they sued the school committee, various officials, and teachers chiefly on the basis that the policy violated their parental rights as recognized by the Supreme Court under the 14th Amendment’s due process clause.
The parents lost in a federal district court, and with its decision this week, the 1st Circuit panel affirmed. The opinion was issued as a per curiam, meaning “by the court,” and not signed by a single author. The panel was made up of Judge O. Rogeriee Thompson, an appointee of President Barack Obama, and Judges Lara E. Montecalvo and Julie Rikelman, both appointees of President Joe Biden.
The court agreed that parents have a fundamental right in the upbringing of their children, based on Supreme Court decisions going back to the 1920s. That right encompasses education and medical care. But when it comes to the parents’ claims that the district’s gender transition protocol amounted to a form of medical intervention, the panel was dubious.
“We are unconvinced that merely alleging Ludlow’s use of gender-affirming pronouns or a gender-affirming name suffices to state a claim that the school provided medical treatment to the student,” the court said.
As for the parental rights claim in the educational context, the court rejected the parents’ arguments that discussing gender transition issues with their child and leaving it to the student to consent to parental notification had infringed on those rights.
“The Supreme Court has never suggested that parents have the right to control a school’s curricular or administrative decisions,” the appeals court said. “Rather, the court’s parental rights cases more essentially provide that the state cannot prevent parents from choosing a specific educational program.”
The panel went on to say, “To the extent the parents oppose certain academic assignments, the use of a student’s pronouns in the classroom, decisions about bathroom access, and a guidance counselor speaking to a student, none of those concerns restrict parental rights under the due-process clause.”
The court also rejected arguments that the district had deceived the parents by sometimes referring to the student as B.F. in front of them but using the student’s chosen name at school.
The district’s protocol “merely instructs teachers not to offer information—a student’s gender identity—without a student’s consent,” the court said, while the parents “remain free to strive to mold their child according to the parents’ own beliefs, whether through direct conversations, private educational institutions, religious programming, homeschooling, or other influential tools.”
Advocacy groups take an interest and file briefs
There was no immediate word on whether the decision would be appealed. The case drew numerous friend-of-the-court briefs from groups on both sides of the debate over gender identity issues in schools.
The Supreme Court has shown some interest in cases involving LGBTQ+ issues in schools. In December, three justices said they would have heard the appeal of a parents group that had challenged a Wisconsin school district’s gender support policy but lost in lower courts on procedural grounds. (Four justices’ votes are needed to grant review.)
Meanwhile, the high court will hear arguments, likely in April, over a Maryland school district’s refusal to allow parents with religious objections to opt their children out of lessons or other exposure to books dealing with LGBTQ+ themes.
Alliance Defending Freedom, a conservative advocacy group that has been involved in battling pro-transgender school policies nationwide, said in its brief that “it is both possible and constitutionally required to find a solution to the challenges posed by competing views of sex and gender identity that respects the rights of parents, students, and teachers. Here, the challenged policy does not honor parents’ rights.”
The Massachusetts Association of School Superintendents, in a brief supporting the Ludlow school system that was written by the Boston-based advocacy group GLBTQ Legal Advocates and Defenders, said parents and schools are natural partners in supporting young people at school.
“However, as much as parents have rights to be involved in their child’s education, that is different from rigid requirements to disclose to parents matters about which the student is not yet ready to discuss at home,” the group said.
