Federal Appeals Court Lets Schools Deceive Parents About Child Gender Transitions

A decision allowing schools to hide social gender transitioning of middle schoolers from parents is shot through with fallacies.

O ne of the major fronts in the transgenderism wars is the determination of public-school authorities and their allies in blue-state government to encourage gender “transitioning” in underage students while concealing what’s happening from the student’s parents. It’s a government hijacking of the role of parents, preying upon distressed minors not old enough to legally make major life decisions.

The courts are struggling with how to respond to this grim spectacle. The United States Court of Appeals for the First Circuit didn’t help matters in its recent decision in Foote v. Ludlow School Committee, which turned away a constitutional challenge by outraged parents who were actively deceived by their child’s school pursuant to a Massachusetts state policy aiming to do exactly that. The decision comes at the same time that a school district resisting such a statewide policy in California won its court battle with the state.

The immediate lesson is that it matters a lot, if you have kids in public school, who runs your school district. The First Circuit’s decision also illustrates the lengths to which defenders of these policies will go to obfuscate what they’re doing.

Foote was decided by a three-judge panel. Two of the judges on the panel were Judge Julie Rikelman, a Biden appointee who previously ran litigation at the Center for Reproductive Rights before moving on to run litigation at NBC Universal, and Senior Judge O. Rogeriee Thompson, an Obama appointee. Senior Judge Kermit Lipez (a Clinton appointee) recused himself only after hearing oral argument, and was replaced on the panel by Judge Lara Montecalvo, another Biden appointee. The court’s opinion was issued per curiam (unsigned by any judge), perhaps reflecting that judges Rikelman and Montecalvo don’t want this in their file if they are ever up for the nation’s highest bench.

Undue Process

If we’re being intellectually honest, we should recognize the limits of constitutional law in this area. The parents in Foote invoked the constitutional right of parents under the due process clause of the 14th Amendment to “direct the upbringing and education of children.” The Constitution says no such thing. The right in question is a subset of “substantive due process.” Under that doctrine, the constitutional guarantee that “no State shall . . . deprive any person of life, liberty, or property, without due process of law” means not only a guarantee of legal process, but an unwritten guarantee of “fundamental rights” to “liberty.”

If we read the 14th Amendment as it was understood when it was written, this is nonsense. The first Supreme Court decision to reason that the due process language (then, in the Fifth Amendment) should be read that way was Dred Scott v. Sandford (in which the Court found in due process a right to bring slaves wherever one wanted to take them). If there is a single thing every historian agrees on regarding the Republican framers of the 14th Amendment, it’s that they hated Dred Scott and wished to purge it from the law books.

If the 14th Amendment was read properly, it would protect American citizens from states depriving them of certain substantive individual rights. That would not be a question of the due process clause, but of the guarantee that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Those privileges and immunities, properly read, include not only the rights expressly guaranteed by the Bill of Rights against federal intrusion, but also certain unwritten rights deeply rooted in American traditions. That would be a set of rights similar, but not entirely identical, to those protected by “substantive due process,” and accessible only to American citizens. There’s a fair question how far such rights under the privileges and immunities clause would extend in the parental-rights space.

All of that, however, is a collateral and academic question in a case such as Foote. The Court took a wrong turn away from the privileges and immunities clause in the 1870s. Substantive due process has set down its own roots in the Supreme Court’s jurisprudence for over a century, and some of its earliest expressions, in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), involved the protection of parental rights in education against the anti-Catholic and official-English doctrines of the Ku Klux Klan of the 1920s. The First Circuit, as a court subordinate to the Supreme Court, really has no responsible alternative to working within the doctrines blessed by the Supreme Court. It can rightly be asked to apply that framework realistically.

See No Medicine

The court divided the parents’ claims into three arguments, invoking different strains of precedent under Pierce and Meyer, and dismissed all of them. While a certain amount of analytical clarity of this sort is useful, it also can run the risk of losing the forest for the trees — in this case, missing the enormity of the Massachusetts policy’s invasion and arrogation of parental authority. Because the case was thrown out on the pleadings, the court deprived the parents of any opportunity to argue their own interpretation of a full evidentiary record. That’s appropriate when it’s clear that no version of the facts alleged could amount to a valid lawsuit — but that’s not how the court approached the case. If anything, this opinion is most vulnerable on an appeal to the Supreme Court for having rejected the parents’ arguments at the pleading stage.

First, the court asked whether the school district “restricted their fundamental right to direct medical treatment for their child.” The court read this right very narrowly to mean primarily a right to control the physical or licensed practice of medicine:

Although the Parents described the decisions made by Ludlow educators as “mental health treatment,” their labeling, without more, cannot transform the alleged conduct into a medical intervention. The Parents allege, for example, that Ludlow educators spoke in private with their child to promote exploring and experimenting with alternative or discordant gender identities and facilitate their child’s gender-affirming social transitioning, which, the Parents say, constitutes mental health treatment.

But on this appellate record, we are unconvinced that merely alleging Ludlow’s use of gender-affirming pronouns or a gender-affirming name suffices to state a claim that the school provided medical treatment to the Student. . . . The Parents fail to state a claim because their allegations as stated do not suffice to describe medical treatment at all.

The . . . [precedents] involved intrusions upon the bodily integrity of the child or other conduct with clinical significance — whether through a medical procedure, examination, or hospitalization. . . . The allegations here do not involve clinical conduct at all. Solely as pled here, we do not believe that using the Student’s chosen name and pronouns — something people routinely do with one another, and which requires no special training, skill, medication, or technology — without more, can be reasonably viewed as evidencing some indicia of medicalization.

This is an unduly restrictive definition of what constitutes “medical” treatment, in a way that excludes most mental-health care even in a case (such as this one) where the middle school faculty and staff were responding to their own assessment that the student was “depressed and struggling with insecurity, low self-esteem, poor self-image, and a perceived lack of popularity.”

It is also a profoundly ideological ruling: It assumes that a change of gender identity in a teenager is not a mental-health condition. If we were dealing with teachers intervening with a student with an eating disorder or suicidal tendencies and developing a plan to address that so that the condition was concealed from parents, it would be obvious that the total lack of medical credentials on the part of the middle school faculty and staff was no defense to the charge that this scheme actively concealed a mental-health condition that parents could otherwise address with medical intervention. Just because your faculty treats mental conditions with snake handling instead of medication doesn’t make the conditions any less medical in nature.

It is also a bait and switch. If what the school was doing did not entail any sort of expert treatment, what exactly is the basis for the state to pass a law taking away parental rights of supervision? When laws of this nature are enacted, we hear all manner of pronouncements about the health of transgender kids and the risk of suicide. When called on the carpet in court, suddenly the state says that this isn’t mental-health care, it’s just manners.

It’s Just the Curriculum

Next, the court dismissed the parents’ arguments against the middle school’s actively pushing students to identify their pronouns “as part of an academic, biographic video assignment.” As the court described what happened (unsurprisingly, during Covid):

Early in the 2020-21 school year, sixth-grade students at Baird, including eleven year-old B.F. (“the Student”), were given an assignment by the school’s librarian to create biographic videos about themselves. According to the Parents’ complaint, the librarian, Jordan Funke, encouraged students to include their pronouns in their videos. The Parents’ complaint does not state how the Student, designated the female sex at birth, responded to this school assignment. But in the months that followed the assignment, the Student’s school Google account started receiving “unsolicited LGBTQ-themed video suggestions” on their school-issued computer.

After watching these clips, the Student began questioning whether they “might be attracted to girls” and whether they “had ‘gender identity’ issues.”

To a normal person, this looks an awful lot like the grooming of an underage kid at a vulnerable age into a particular view of sexuality. To the panel, this was simply a matter of “decisions by Ludlow’s staff about how to reasonably meet diverse student needs within the school setting.” Again reviewing precedents, the court insisted:

We have consistently applied these principles in rejecting parental control over curricular and administrative decisions. In [a prior case], the plaintiff parents claimed a right to be given prior notice by the school and the opportunity to exempt their young children from exposure to books they found religiously repugnant. . . .

In rejecting the parents’ substantive due process claim, we noted that no federal court had ever held that the Due Process Clause permitted parents to demand an exemption for their children from exposure to certain books used in public schools. We have consistently applied these principles in rejecting parental control over curricular and administrative decisions. [Quotations and citations omitted.]

The court concluded:

The Parents’ objections here are no different. To the extent the Parents oppose certain academic assignments, the use of a student’s pronouns in the classroom, decisions about bathroom access, and a guidance counselor speaking to a student, none of those concerns restrict parental rights under the Due Process Clause. Rather, the Parents are challenging how Baird Middle School chooses to maintain what it considers a desirable and fruitful pedagogical environment.

To start with, this misses an important distinction between asking children to be exposed to a book and actively soliciting them to volunteer commitments about their own sexual or gender identity. It also misses the straight line from the assignment to the changes in how the school addressed the student. Atomizing the pieces of the policy in this way is flatly dishonest.

The Hidden Hand

Finally, the court rejected the parents’ challenge to the school protocol against informing parents of a change in how the student was named and otherwise gender-identified. The court argued that this was not coercive conduct, which is a bizarrely unrealistic way to discuss the influence that school authority figures have on a middle schooler. Preposterously, the court asserted that “providing educational resources about LGBTQ-related issues to a child who has shown interest imposes no more compulsion to identify as genderqueer than providing a book about brick laying could coerce a student into becoming a mason.” But schools don’t have policies to hide from parents that they are teaching kids about bricklaying.

The court then framed the complaint as having alleged only a passive failure by the school to tell the parents about something the child did unprompted:

The complaint contains only general allegations that, under the Protocol, Ludlow educators were directed to “intentionally misinform and lie” to the Parents about the Student’s requested name and pronouns. . . . No allegation suggests that, when the Parents tried to speak with school officials about the Student, the officials misrepresented the name the Student had chosen for in-school use. Rather, the officials . . . just declined to discuss the Student’s gender identity issues with the Parents. . . . It is not enough for the Parents to allege that the nondisclosure Protocol makes their parenting more challenging . . . the challenged governmental action (the Protocol) merely instructs teachers not to offer information — a student’s gender identity — without a student’s consent.

Since when is the consent of a minor the crucial issue? In any event, the fiction that this case is solely about an omission to act ignores the fact that the opinion up to this point has been talking about affirmative conduct by the school: prodding the kid with assignments, altering how adults refer to the child in school by name and gender, and how school policy intervenes in the child’s access to different-sex bathrooms.

The whole thing is a house of cards. When it suits progressives, they defend these sorts of policies as an urgent intervention to protect kids from their own parents. When defending them in court, suddenly all of that vanishes. The legal system should not be so easily fooled.