WAUKESHA, Wis. (CN) — The hot-button issue of whether school districts can honor a student’s desire to identify by the gender of their choosing at school against their parents’ consent hit a Wisconsin circuit court on Wednesday.
Wading into murky legal waters, attorneys representing a school district and four parents sparred at a summary judgment hearing in Waukesha County Circuit Court over the limits of parents’ constitutional rights to dictate what schools can do regarding their children and what kind of accommodations schools can legally provide to students identifying as transgender, issues courts have been slowly catching up to as the public discourse has ratcheted over the past decade.
Filed in 2021, the underlying lawsuit – filed by the Wisconsin Institute for Law & Liberty, or WILL, a nonprofit firm that advocates for conservative policies – challenges the Kettle Moraine School District’s policy, written or unwritten, to allow minor students to socially transition to a new gender identity at school, with or without their parents’ consent.
WILL represents two parents whose 12-year-old daughter began questioning her gender. The parents, known only by initials, temporarily pulled their daughter from school to get counseling at a mental health center, which the complaint says “encouraged her to transition to a male identity,” and their daughter decided she wanted to transition to a male name, pronouns and identity.
When the parents asked school officials to refer to their daughter using only her legal name and female pronouns, the officials balked before saying they would not follow the parents’ decision, prompting them to pull their daughter from Kettle Moraine Middle School.
A few weeks later, according to the complaint, their daughter changed her mind and decided to stick with her birth name and gender identity, commenting to her mother that the affirmative care she received “really messed [her] up.”
All of this, the plaintiffs say, violated their parental rights under the Wisconsin Constitution’s protections analogous to due process and equal protection rights under the U.S. Constitution’s 14th Amendment.
Two other anonymous parents who do not have a child in the district in the same situation are also plaintiffs in the suit, alleging potential harms they could face from the district’s policy.
Luke Berg, the parents’ attorney, argued to Judge Michael Maxwell that the district cannot take these kinds of cases as they come and transfer the right to make what amount to major health care decisions from parents to itself, whether or not that’s official policy.
“That case-by-case decision-making is the violation,” Berg said, adding later that the district’s actions require a broader decision beyond just these parents’ circumstances because “the harm is imminent at all times.”
Ronald Stadler, the district’s lawyer, emphasized there is no case establishing the rights the parents claim and, contrarily, courts from coast to coast have ruled the opposite way. That leaves the parents with no fundamental right to absolute authority over what happens to their children at school, he said, in part because U.S. Department of Education regulations and federal laws like Title IX require deference to students.
Maxwell said he was not surprised there were no cases supporting the parents’ arguments on this fairly new issue. He noted that, early on, when the battle over school desegregation landed in courts, there were no cases saying that the separate-but-equal doctrine laid out in Plessy v. Ferguson was wrong.
The judge heard out all the parties’ viewpoints, but at times he seemed particularly receptive to the parents’ claims. He pointed out to Stadler that school districts have many policies that require parental permission – to play football or to go on field trips, for instance – but the district distinctly went against the parents’ wishes in this case without an official policy.
At one point, Maxwell expressed surprise when Stadler suggested that a school could make nutritional dietary choices – carrots and celery for lunch – for an obese student facing bullying against the parents’ consent if that’s what the student wanted. The judge wondered, if that’s the case, whether there were any bounds to schools’ authority over students.
Stadler said school officials ultimately need to act in a student’s best interest when they’re at school, including by protecting trans kids from harassment. Districts like Kettle Moraine’s are in the delicate position of having to balance the rights and opinions of parents, students and medical professionals, he said.
“You can’t policy that,” as Stadler phrased it.
Both attorneys acknowledged that case law in this area is in its early stages, leaving Maxwell with a tricky decision that could take months to arrive. The judge said at the end of Wednesday’s hearing that he would issue a written decision, but he did not say when.
Speaking to reporters after the hearing, Stadler called the proceedings “a good healthy debate.”
“It’s not an easy issue, and school boards all across the state are struggling” with it, and there may not be a one-size-fits-all answer for every community, the district's attorney said.
Berg said he felt the arguments went well and “the judge clearly got the point that this is a serious issue and that parents have to be involved” in gender identity transitioning.
The goal of the lawsuit, the plaintiffs’ attorney said, is for the court to require the district to get parental consent before it treats children as if they are the opposite sex at school, just as parental consent is required for a variety of other things.
WILL has been involved in at least one similar case over a Madison school district policy since 2020. After years of legal wrangling over the parents’ right to proceed with complete anonymity, even to opposing counsel, the Wisconsin Supreme Court ruled last summer that they could not. The majority in that ruling reached only procedural questions, not the merits, but a minority of dissenting conservative justices led by soon-to-be retired Justice Patience Roggensack felt the Madison district’s policy violated parental rights and that the majority should have said so.
A Dane County judge dismissed that lawsuit on standing grounds in November. Berg said WILL is waiting to hear if the state’s highest court – soon to have a liberal majority – will hear that case, bypassing the Wisconsin Court of Appeals. Considering some recent docket activity, he said he is confident it will.
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