Iowa parents urge appeals court to block school gender identity policy

(CN) — Parents of Iowa schoolchildren, Republican state legislators and advocates for recognizing LGBTQ rights are clashing at school board meetings and state Capitol hearings over whether some schools have gone too far in protecting transgender students – even from their parents.

That clash came into sharp focus during oral arguments Wednesday morning before the Eighth Circuit in St. Louis, where a group of parents are asking the federal appeals court to block a Linn-Mar Community School District policy designed to respect the wishes of transgender students who don’t want to be identified by their gender or name given at birth – including directing school officials to use students’ chosen names at school and in school records – without necessarily informing or consulting with parents.

The organization Parents Defending Education sued the school district last August on behalf of seven anonymous parents, all of whom have children with special needs or who may be likely to express gender nonconformity. They characterize the policy as a usurpation of their fundamental rights as parents to raise their children as they see fit. They seek a preliminary injunction to prevent implementation of the policy.

The complaint alleges the school district’s policy violates the First Amendment by compelling speech and through viewpoint-based discrimination. U.S. District Judge C.J. Williams denied the parents' motion for an injunction in September, prompting their appeal to the Eighth Circuit.

“A child’s gender identity implicates the most fundamental issues concerning the child, including the child’s religion, medical care, mental health, sense of self, and more,” the parents argue in a brief filed with the appeals court. “Yet despite ‘extensive precedent’ [from the U.S. Supreme Court] that parents must be involved in decisions concerning these types of issues, school districts across the country are increasingly excluding parents from decisionmaking when gender identity is involved.”

The school district, in its brief filed with the Eighth Circuit, argued that the district court correctly denied an injunction because the plaintiffs lack standing

At Wednesday’s hearing, attorney Cameron T. Norris of the Arlington, Virginia-based firm Consovoy McCarthy, representing the parents, told the court that the Linn-Mar school district has taken a side in a “sensitive, controversial and hotly contested” debate over gender identity and preferred pronouns “with its policy where children’s stated gender identity is affirmed no matter what.”

“People of good faith can disagree about whether that treatment is best for kids,” he said, “but under the 14th Amendment, the government can’t impose that treatment on children behind their parents’ backs. And under the First Amendment, the government can’t force dissenting students to mount their support for it. Because Linn-Mar’s policy crosses both of those lines, it should be preliminarily enjoined.”

Members of the three-judge panel quizzed the attorney for Linn-Mar schools – Miriam Van Heukelem of the Des Moines firm Ahlers & Cooney – about whether parents have the right to access their child’s school records under the federal Family Educational Rights and Privacy Act and whether that contradicts the plaintiffs’ claim the school district could prevent them from learning whether their child sought protection under the school district’s policy.

Van Heukelem told the judges that FERPA says that “all education records of a student are subject to inspection and review of the parents.”

U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, wondered if the school district policy makes it more difficult to get records where there’s concern for a parent to get a student’s records.

“Is this kind of a roadblock?” she asked.

In response, Van Heukelem said FERPA protects the confidentiality of student records from others, not their own parents.

“For students grade 7 through 12, that doesn’t mean the parent will not be included," the attorney said. "We would assume and expect that in the vast majority of cases the parent would be” involved.

The Linn-Mar Community School District in eastern Iowa includes portions of the cities of Marion, Cedar Rapids, Robins and eastern Linn County, and is the 12th largest district in student population in the state.

As a measure of how intense the fight over this issue is not just in Iowa but nationally, 66 friend-of-the-court briefs were filed with the Eighth Circuit, including by 18 states. All but five opposed the Linn-Mar policy.

The panel was rounded out by U.S. Circuit Judges Steven Colloton and Duane Benton, both appointees of George W. Bush.

It is not known when the court will issue a ruling.

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