Wisconsin judge calls transgender student policy a violation of parental rights

WAUKESHA, Wis. (CN) — A Wisconsin judge has ruled that a school district policy allowing transgender students to socially transition to a different gender identity at school without notifying their parents is unlawful, finding it violates parents’ constitutional rights.

Waukesha County Circuit Court Judge Michael Maxwell’s summary judgment order from late Tuesday enjoins the Kettle Moraine School District “from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent.”

Maxwell specifically said the policy violates parents’ autonomous rights to make medical and healthcare decisions regarding their child, rebutting the school district’s lawyer’s contention at arguments in April that the parents were instead trying to imply fundamental rights they do not have.

“The school district could not administer medicine to a student without parental consent. The school district could not require or allow a student to participate in a sport without parental consent. Likewise, the school district cannot change the pronoun of a student without parental consent without impinging on a fundamental liberty interest of the parents,” Maxwell said in his order.

Maxwell also said that two anonymous parents acting as plaintiffs in the lawsuit have standing to bring their claims even though they do not have a child in the school district, resolving for the moment what has been a sticking point in this and similar lawsuits by saying the potential of harm for the parents is great enough to afford standing.

Saying that “this court has before it what modern society deems a controversial issue — transgenderism involving minors within our schools,” the judge seemed to acknowledge the delicate factors at play in the lawsuit, going on to say that “clearly, the law on this issue is still developing across the country and remaining largely unsettled.”

But ultimately Maxwell fell on the side of the parents trying to end the district’s policy, which echoes a broader push against such policies and other issues facing transgender youth in Wisconsin and nationwide.

The issue in the Waukesha lawsuit is not as broad as the controversy of the current cultural flashpoint, Maxwell said.

“This particular case is simply whether a school district can supplant a parent’s right to control the health care and medical decisions for their children. The well-established case law in that regard is clear — Kettle Moraine cannot,” Maxwell said.

“The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents’ wishes is not permissible and violates fundamental parental rights,” the judge concluded.

The underlying lawsuit was filed in November 2021 by four anonymous plaintiffs, two of them parents claiming the school district refused to follow their decision not to let their then 12-year-old daughter who had been questioning her gender transition to a male identity at school.

The anonymous parents claim that, in the end, their daughter changed her mind about transitioning, according to the complaint.

The plaintiffs were represented by attorneys with the Wisconsin Institute for Law & Liberty, a conservative legal advocacy group also known as WILL. Also on the side of the plaintiffs was Alliance Defending Freedom, a prominent Arizona-based Christian conservative legal nonprofit that focuses in part on the murky legal area of parental rights and resisting policies that accommodate transgender kids, including in school athletics.

WILL did a victory lap in a press release responding to Maxwell’s decision, saying the case “represents a first-of-its-kind win against a school’s gender-transition policy to circumvent parents.” The firm noted that “this is the first case where a court has ruled on the merits in favor of parents over a school district” among cases challenging policies similar to Kettle Moraine’s.

“Thus, this case sets an important precedent that will help other parents defend their rights, both in Wisconsin and across the country.”

Ronald Stadler, an attorney who represented the school district, did not immediately respond to a phone message left at his office seeking comment on the decision.

WILL has been involved in at least two other cases challenging similar policies in Madison and Eau Claire school districts. The Madison case got hung up for two years over the issue of whether the plaintiffs could proceed anonymously. Last summer the Wisconsin Supreme Court said they could not in a decision that did not reach the case’s merits, though dissenting conservative justices signaled they agreed with WILL’s position. The case was then dismissed by a Dane County Circuit Court judge last November on standing grounds.

A Madison federal judge dismissed the Eau Claire lawsuit in February, also finding the plaintiffs lacked standing. The issue was argued at the Seventh Circuit last month, where the judges mostly seemed skeptical of WILL attorney Luke Berg’s arguments. The three-judge appeals panel gave no timeline for a decision in that case.

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