Federal court allows school to keep parents in the dark about student gender identity; Supreme Court appeal on the table

A federal appeals court has ruled that a Massachusetts school district can conceal a student’s gender identity from the child’s parents – setting up a potential legal clash before the Supreme Court.

In a Feb. 18 ruling, Boston-based 1st U.S. Circuit Court of Appeals upheld a Ludlow Public Schools policy that required student consent for school administrators to notify parents if their child requested to use a different name or pronoun at school.

Two parents, Stephen Foote and Marissa Silvestri, argued the policy violated their 14th Amendment right to direct their child’s upbringing – after their 11-year-old daughter, a biological female, began identifying as genderqueer and requested to use a different name at school without the parents’ knowledge.

The parents argued that the school’s usage of the student’s different name and pronouns was a form of “psychosocial” mental health treatment through “social transitioning” that the school provided without their knowledge or consent. 

“We acknowledge the fundamental importance of the rights asserted by the Parents to be informed of, and to direct, significant aspects of their child’s life – including their socialization, education, and health.”  

However, the three-judge panel for the appellate court wrote in the ruling, “parental rights are not unlimited.”  

The panel comprised Judges Lara Montecalvo and Julie Rikelman, appointees of former President Joe Biden, and Judge O. Rogeriee Thompson, who was appointed by former President Barack Obama, reported Reuters. 

“Parents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school,” the judges wrote. “As per our understanding of Supreme Court precedent, our pluralistic society assigns those curricular and administrative decisions to the expertise of school officials, charged with the responsibility of educating children.”  

The parents were represented by the Child & Parental Rights Campaign, which has indicated that it is considering appealing the case to the Supreme Court, Reuters reported, as the circuit court “wrongly apprehended the fundamental parental right at issue.” The organization did not return a request from The Lion for comment.  

The school district’s lawyer, David Lawless, said the court’s ruling was a “characteristically thoughtful and well-reasoned opinion.” 

The appeals court noted that public schools “need not offer students an educational experience tailored to the preferences of their parents” and thus that the parents had “no right to veto the curricular and administrative decisions identified in the complaint.” The school district’s policy “operates only in the school setting,” the panel added, where “parents have less authority over decision-making concerning their children.” 

The judges also appeared to suggest that secretive policies protect students from “parental backlash.” 

“Outside school, parents can obtain information about their children’s relationship to gender in many ways, including communicating with their children and making meaningful observations of the universe of circumstances that influence their children’s preferences, such as in clothing, extracurricular activities, movies, television, music, internet activity, and more,” the court noted, adding that the district’s policy “creates a space for students to express their identity without worrying about parental backlash.” 

The ruling has come under fierce criticism from parental rights advocates. Veteran litigator Rick Claybrook, who specializes in religious liberty and parental rights issues, wrote that the court “stumbled badly.” 

“Parents are primarily responsible for their children’s physical and mental health, and they have the right to make decisions for their children – unimpeded by the public schools – concerning matters of lifelong importance such as gender identity,” he wrote in an article published by the Federalist Society. “School officials dissembling and withholding information from parents is inconsistent with parental rights and responsibilities, and it hampers parents’ informed exercise of their rights.”