Parents’ Rights Not Violated by School Gender Policy, Court Rules

A federal appeals court has ruled that a public school does not violate parents’ rights when school officials do not inform them that their child is grappling with the possibility or reality of being LGBTQ.

The school policy in Ludlow, Massachusetts, instructed teachers and staff not to inform parents if a student used a different pronoun and name unless the student sought help in approaching their parents.

A Massachusetts couple argued that by not informing them of their child’s identity at school, the school interfered with their fundamental right to parent.

A three-judge panel of the First Circuit U.S. Court of Appeals in Boston ruled that the policy did not deprive parents of their right to raise their child based on their values.

“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,” said the panel.

The decision comes in Foote v. Ludlow, one of several cases involving LGBTQ youth that have been percolating through the federal courts in the past year. The lawsuits, backed by the Alliance Defending Freedom and other right-wing groups, aim to limit schools’ efforts to provide safety, privacy, and resources for students questioning their LGBTQ identity.

The opinion in the latest decision, issued February 18, cites U.S. Supreme Court precedent supporting the protection of LGBTQ youth. The three-judge panel that delivered the First Circuit opinion consisted of three female Democratic appointees: Lara Montecalvo, Julie Rikelman, and O. Rogeriee Thompson.

The legal conflict originated with parents of an 11-year-old sixth grader in Ludlow, a small suburb of Springfield, Massachusetts. (The student and a sibling at the same middle school are identified only as B.F. and G.F. in court papers.)

The student B.F., who was identified as female on their birth certificate, began questioning their sexual orientation and gender identity in middle school. The student confided in a teacher that they were struggling with depression and other issues, including that they “might be” attracted to girls. The student approached the teacher for guidance in asking their parents for help. The teacher talked to the student’s mother and shared the student’s concerns. The parents wrote to the teacher, saying they would seek help for their child and asked that the teacher not have any further talks with the student.

“As per our understanding of Supreme Court precedent,” wrote the appeals court in the unsigned opinion, “our pluralistic society assigns those curricular and administrative decisions to the expertise of school officials, charged with the responsibility of educating children. And the [policy] of nondisclosure as to a student’s at-school gender expression without the student’s consent does not restrict parental rights in a way courts have recognized as a violation of the guarantees of substantive due process.”

After talking to their teacher, B.F. sent an email to all their teachers, the school counselor, and the superintendent, identifying as “genderqueer.” The email indicated the student had decided to use both male and female pronouns and would—at school—go by a different name. The school counselor then sent an email to staff, directing them to refer to the student by their preferred name and pronouns at school but to use their given name and female pronouns when communicating with the student’s parents. A teacher later informed the parents that the student was continuing to use the different name and gender identity at school and that teachers were respecting the student’s choice.

The policy adopted by the Ludlow School Committee is similar to those in most schools regarding student pregnancy. It also reflects a Massachusetts state policy implemented in 2012 that advised school staff to accept a student’s asserted gender. The state policy also noted that “[s]ome transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance.” The policy advised school staff to obtain permission from a student before discussing gender identity issues with the student’s parents.

B.F.’s parents considered the teachers’ compliance with the policy a form of “treatment” for gender dysphoria. Their lawsuit claimed the school’s actions had deprived them of their rights to family privacy under the Constitution and their right to determine their child’s education and medical treatment. A district court ruled for the school, and the parents appealed to the First Circuit U.S. Court of Appeals.

The First Circuit upheld the district court ruling, stating that the school’s actions did not constitute medical treatment. While parents have a right to educate their children, they do not have the authority to dictate how schools teach. The panel also found that the school’s conduct is “rationally related to a legitimate state interest”—namely, “cultivating a safe, inclusive, and educationally conducive environment for students, which allows students to thrive and thus learn.”

“State actors have ‘a compelling interest in protecting the physical and psychological well-being of minors,’” wrote the panel decision, quoting a 1989 Supreme Court ruling on youth access to explicit content. (In Sable Communications of California v. FCC, the Court ruled that efforts to protect minors from indecent messages must not infringe on adults’ rights to access them.)

“That interest is at its peak,” wrote the panel, “when a school board seeks to protect children who are particularly vulnerable, such as transgender minors.”

“The [Ludlow school policy] plausibly creates a space for students to express their identity without worrying about parental backlash,” the First Circuit panel stated. “By cultivating an environment where students may feel safe in expressing their gender identity, the [policy] endeavors to remove psychological barriers for transgender students and equalizes educational opportunities.”

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