A federal appeals court has ruled that a group of parents cannot challenge a Montgomery County Public Schools policy advising teachers and staff not to “out” trans-identifying or gender-nonconforming children to their parents.
The 4th U.S. Circuit Court of Appeals ruled 2-1 that three parents in Montgomery County, Maryland, lacked standing to challenge the policy because they had not alleged their children were transgender in the first place.
The policy in question, which the Montgomery County Board of Education adopted for the 2020-2021 school year, permitted schools to develop so-called “gender support plans” for trans-identifying or questioning students to ensure they “feel comfortable expressing their gender identity,” reports Reuters.
Under the policy, school staff is expected to create a plan governing a student’s preferred names, pronouns, participation in athletics or school extracurricular activities, and the restroom and locker room facilities they are allowed to access.
The policy also requires teachers and counselors to gauge the level of support a student “receives or anticipates receiving” from their parent if such information is disclosed.
While ideally, the gender support plans work “toward inclusion of the family,” school staff may choose to withhold information about the plans if a student’s family would not support their coming out or socially transitioning.
In response to the policy, three parents, backed by the National Legal Foundation, a conservative Christian group, sued.
They argued that the policy violates their due process rights under the Constitution’s Fourteenth Amendment, which protects the right of parents to direct the care of their children as they see fit.
But two appointees of former President Donald Trump — U.S. Circuit Judges A. Marvin Quattlebaum and Allison Jones Rushing — found that the parents lacked standing to pursue their “compelling arguments” and dismissed the case without prejudice, meaning it may be refiled at a later date.
Quattlebaum, who authored the court’s opinion, noted that because the families did not allege their children had gender support plans or were transgender, the policy did not apply to them.
“This case begins and ends with standing,” Quattlebaum wrote. “The parents have not alleged that their children have gender support plans, are transgender or are even struggling with issues of gender identity.
“As a result, they have not alleged facts that the Montgomery County public schools have any information about their children that is currently being withheld or that there is a substantial risk information will be withheld in the future. Thus, under the Constitution, they have not alleged the type of injury required to show standing.”
Implying that if one of the children of the objecting parents were to suddenly claim to be transgender or gender-nonconforming, and demand a “gender support plan” from school officials, the parents might have standing to challenge the policy, Quattlebaum nonetheless held firm and said that such a situation did not exist — at least not yet.
“Absent an injury that creates standing, federal courts lack the power to address the parents’ objections to the Guidelines. That does not mean their objections are invalid. In fact, they may be quite persuasive,” Quattlebaum wrote. “But, by failing to allege any injury to themselves, the parents’ opposition to the Parental Preclusion Policy reflects a policy disagreement. And policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse.”
U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, dissented, calling his colleagues’ conclusion “an unfortunate abdication of judicial duty with respect to a very important constitutional issue.”
Niemeyer claimed that because parents could not know whether their children had acted on the policy’s “invitation” to identify as transgender and seek out a gender support plan, they therefore had the right to sue.
“The issue of whether and how grade school and high school students choose to pursue gender transition is a family matter, not one to be addressed initially and exclusively by public schools without the knowledge and consent of parents,” he wrote.
The appeals court’s 2-1 decision upholds a lower court’s decision to toss the lawsuit based on lack of standing.
Frederick Claybrook, an attorney representing the parent plaintiffs, said his clients were considering their next course of action.
“We agree with the analysis of the dissenting judge that parents have a right to complain about this school policy because it allows the school to keep secret from parents how it is treating their child at school and that such policies violate parental rights,” he said in an email to the Maryland newspaper The Daily Record. “Parents do not have to wait until they find out that damage has been done in secret before they may complain.”
A spokesperson for Montgomery County Public Schools was not immediately available for comment.
Other lawsuits are challenging similar policies in other states, but the Maryland case was the first to be argued before a federal appeals court.
A lawsuit challenging a nearly identical policy in Madison, Wisconsin, was dismissed by a state judge for lack of standing, according to the Wisconsin Examiner.
Conservative groups representing parents who objected to the policy attempted to circumvent a state appeals court and requested that the Wisconsin Supreme Court take up the matter. But after the Supreme Court declined to take up the appeal, the plaintiffs dropped their appeal of the state judge’s decision.
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