BOSTON (CN) — In a nationally watched test case in which 34 states filed amicus briefs, the First Circuit heard arguments Wednesday on whether a school violated parents’ constitutional rights when it actively encouraged their 11-year-old daughter to change her gender while hiding this fact from them.
Parents have no right to know about or interfere with a child’s gender transition because “gender identity is an immutable characteristic” and “you can’t decide to have transgender children or not to have transgender children,” the school’s lawyer, David Lawless of Robinson Donovan in Springfield, Mass., told the court.
If schools had to disclose a child’s gender, there would be “no limiting principle” because “schools have lots of important information about students all the time. You can’t pick and choose what to disclose,” Lawless said.
“I don’t see that,” responded U.S. Circuit Judge Julie Rikelman. “Gender identity is very important to everyone. Are you really saying that there’s no difference between gender identity and who a child played with at recess?”
Lawless stood his ground and said that a school has no duty to tell parents a wide variety of important information about students, including whether they are depressed or suicidal or were raped or had an abortion.
“You seem to be asserting that the right of students to make decisions trumps the right of parents to know what’s going on,” said U.S. Circuit Judge Kermit Lipez, a Clinton appointee.
“We are,” Lawless answered.
The case, Foote v. Ludlow School Committee, arose when Stephen Foote and Marissa Silvestri’s daughter, known in court papers as B.F., expressed interest in becoming a boy. The parents wrote to her teachers and principal as well as the superintendent and school committee members in their town of Ludlow, Mass., saying that they would handle her mental health issues and asking them not to have any private conversations with B.F. about it.
But that’s not what happened. Pursuant to a school board policy, school officials regularly met privately with B.F.; actively affirmed the child’s gender transition; allowed B.F. to use the boys’ bathroom; instructed everyone at the school to use the child’s preferred name and pronouns; and implied to B.F. that Foote and Silvestri weren’t providing a safe environment at home. Officials hid all this from Foote and Silvestri.
When a teacher later bucked the policy and told the parents anyway, she was fired. The superintendent publicly accused families who objected to the policy of “intolerance, prejudice and bigotry … thinly veiled behind a camouflage of what is being asserted as ‘parental rights.’”
Foote and Silvestri sued, claiming the school violated their substantive due process right to direct their child’s upbringing and to make mental health decisions.
In December 2022, a trial judge ruled in favor of the school, finding that while its policy was “flawed” and “disconcerting” and “students and parents would almost certainly be better served” by a different approach, its actions didn’t violate the Constitution.
Simply calling students by their preferred name and pronouns didn’t amount to mental health treatment, the judge said. And while parents have a right to direct their children’s upbringing, interference with that right doesn’t violate due process unless it “shocks the conscience” — and given the newness of the transgender issue and the public controversy surrounding it, the school’s choices didn’t rise to that level.
As an example of something that “shocks the conscience,” the court cited a case where a school lied about whether its drinking water was safe.
But the parents’ lawyer, Mary McAlister of the Child & Parental Rights Campaign in Johns Creek, Georgia, told the First Circuit that this case was analogous to one in which a federal judge in Maine found that it shocked the conscience when a police officer tried to get an 11-year-old girl to snitch on her parents for marijuana use and implied that she wasn’t safe at home.
In B.F.’s case, McAlister said, “an 11-year-old girl was being told that her parents don’t love her, they can’t keep her safe, she can’t trust them and she can only trust the school.”
McAlister also argued that the “shocks the conscience” test is easier to meet in the case of a deliberate policy decision as opposed to a spur-of-the-moment choice by law enforcement.
Lawless responded that much of what the school did, such as letting the child use preferred pronouns and bathrooms, was required by a state educational guideline. But “that’s a guideline, not a law or legal decision,” McAlister said. “You need to look at what other courts have done.”
McAlister faced tougher questioning on whether the school was providing mental health treatment. U.S. Circuit Judge O. Rogeriee Thompson, an Obama appointee, noted that the child was never diagnosed with gender dysphoria.
“Wouldn’t accepting this argument mean that many ordinary people in everyday life are providing mental health treatment when they use preferred pronouns?” asked Rikelman.
McAlister responded that using preferred pronouns and other “social transitioning” is a standard part of mental health protocols; the school behaved as though the child had gender dysphoria; and the situation was different from “everyday life” because the school was acting with governmental authority.
Rikelman is a Biden appointee who joined the court in June after representing the abortion clinic in the Supreme Court’s Dobbs decision that overruled Roe v. Wade. Interestingly, in that case she argued that abortion should be considered a substantive due process right.
Even if the parents in this case can persuade the court that the school’s conduct shocks the conscience, the individual defendants might still have qualified immunity if the right they violated wasn’t clearly established at the time.
“Plaintiffs have not identified a single case that establishes a substantive due process right that has been violated,” Lawless insisted.
“Do you need to find a case squarely on point?” Rikelman asked. “Isn’t applying the law to new facts what advocates do all the time?”
“Yes, but there’s nothing that comes close to the rights asserted in this case,” Lawless replied, adding that “just because you might have a flawed policy doesn’t mean the policy shocks the conscience.”
The case drew briefs from more than 100 amici, including 19 states that support the parents (Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia) and 15 states that support the school (California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington state, plus the District of Columbia).
Ludlow is an unlikely epicenter for a national transgender controversy. The sleepy middle-class suburb of Springfield, once a mill town, has 21,000 people and narrowly voted in favor of President Trump in 2020.
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