First Circuit Court of Appeals Hears Oral Argument in School Secret Social Transitioning Case
Lawyer for Parents: “This 11-year-old girl was being told that her parents don’t love her. That they can’t keep her safe. She can’t trust them. She can only trust the people at the school.”
On September 12, 2023, the First Circuit Court of Appeals heard oral argument in the closely watched Foote v. Ludlow School Committee, the secret gender transitioning case we covered here.
The lawsuit was brought by Stephen Foote and Marissa Silvestri against the Ludlow, Massachusetts school committee after they learned from one of its teachers that their 11-year-old daughter had secretly transitioned to “genderqueer” in school.
That teacher was later fired, the parents say, because under the school’s policy, when a student asks to be called by a new name and pronouns of a different gender, staff members must keep it a secret from the parents, unless they have the student’s consent.
The parents claim that withholding information about their children’s gender identity violates their constitutional rights to raise their children and make medical and mental-health care decisions for them.
But in December, U.S. District Court Judge Mark G. Mastroianni dismissed those claims.
The parents appealed to the First Circuit, arguing yesterday that the district court applied the wrong standard when it rejected their claims. It should not have dismissed their complaint, because the school’s significant interference with their parent-child relationship “shocked the conscience,” which they argued is the correct legal test.
What’s truly shocking is that the school wasn’t merely keeping secrets from the parents about their own child. No: the school was proactively socially transitioning the children entrusted to them—a policy that was not merely “reactive.” And it kept that a secret, too.
PARENTS’ LAWYER:
[The school counselor] was engaging in private conversations with the child and was questioning her parents’ ability to care for her. Without her parents’ knowledge she … met weekly with her and she would regularly say I don’t know that I [can] keep you safe if you’re not with me. … I don’t know that your parents’ counselor [i.e., the counselor already hired by the parents for their daughter] is sufficient for you.
I’m concerned that you’re not getting the support you need. None of which she had any any basis for, because she’s not spoken to the parents.
…
This 11-year-old girl was being told that her parents don’t support her. They don’t love her. They can’t keep her safe. She can’t trust them.
She can only trust the people at the school. … How can she ever trust her parents if the counselor is telling her these things?
The district court was also wrong to call “social transitioning” a nice way to show “respect” for the student. When a school socially transitions a child, that is a mental health treatment, and the courts have recognized it as such, the parents’ lawyer argued.
The school “crossed the line”:
And without the parents’ permission … I mean here the parents had no knowledge. They were denied the information they needed to make this decision … to determine what’s best for their child.
The court then wanted to know how the school justified its “no-disclosure” policy, especially given that it was not required by Massachusetts law, a point the school’s lawyer conceded.
SCHOOL’S LAWYER:
If one accepts that gender identity must always be disclosed to parents, then there are any number of other important aspects of the child’s life and personhood that must also be disclosed to parents. … There’s no … limiting principle. …They can’t be required to pick and choose constantly, which information gets shared back. It’s just not tenable.
The court didn’t seem to be buying that at all.
COURT:
Respectfully [that] doesn’t seem correct to me. I think gender identity is clearly very important to everyone and there are many things that happen in school every day that would qualify as less important than that.
So do you really see no limiting principle between something like the gender identity of your child and … who your child may have played with during recess that day? Are you really saying there’s no difference?
SCHOOL’S LAWYER:
No, I’m not saying that there’s no difference there. [But] … the mere failure to convey important information doesn’t shock the conscience.
And it’s particularly the case here where the children requested that the information not be shared and where [the parents] are insisting on notice for the purpose of controlling the child’s gender identity. [emphasis added]
But as between the school and the parent, who should “control” children’s choices about their gender? That is really the whole point, though I doubt the school’s lawyer meant to get to it.
Apparently, the school was doing a lot more of its own “controlling” than it let on to parents. Students weren’t changing genders out of nowhere. They had help, and plenty of it, the plaintiffs allege, from the now former “nonbinary” school librarian. She actively socially transitioned them, telling them not to refer to one another as “boys” and “girls”; meeting with them “on multiple occasions to discuss alternative genders, affirm the children’s choices of alternative names, and provide encouragement for their assertion of a transgender identity”—all without the parents’ knowledge or consent.
Given these circumstances, the school’s “no disclosure” policy’s subverts the parents’ most basic right in this case: the right to decide whether to send their children to public school at all.
COURT:
One of the basic rights that parents have is to decide whether to keep their children in private or public school. … [But] by the school not disclosing important information, they then really lose their ability to make a meaningful decision between do we keep our child in this school or do we make the decision to place our child in a different school?
There is no good answer to that question and the school’s lawyer didn’t give one. And while it remains to be seen how the judges will rule in the weeks to come, yesterday they seemed bothered by an admittedly unrequired policy that purposely keeps parents in the dark.
The oral argument is posted on the court’s oral argument recording page: Case: 23-1069, Foote v Ludlow School Committee:
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Comments
Shock the conscience, indeed. Yesterday, I called a parent because their child has seemed withdrawn and wasn’t associating with their normal peer group. The parent seemed happy that somebody was noticing such and telling them.
Is it so much to ask that significant life changes that will alter the future of a child be brought to the parent’s attention?
If you were teaching in a college which accepted federal funding, it would be a FERPA violation. Another level of madness.
https://twitchy.com/aaronwalker/2023/09/15/california-court-rules-parents-have-a-right-to-know-if-their-children-are-transgender-n2387273
This federal judge seemed to hit the nail square on the head!
“CONCLUSION: “The school’s policy is a trifecta of harm: it harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse.”
Right there at the end…fleeting impulse!! The parents have the ABSOLUTE right to know everything happening with their child at school.
In fact Id go so far as to make it a criminal offence for schools to get involved with anything to do with a childs sexuality, especially changing it! Sex, outside of limited educational reasons, is NOT the schools concern and never should be.
Amen. Let’s continue that to eliminate all of the mission creep that has occurred in our government schools.
Governor Hair-Gel and his AG Tattoo (da plane, da plane) aren’t going to like that.
When the school gives birth to the child, feeds the child three meals daily, clothes the child, takes care of the child 24/7, and shoulders every possible expense of the child, then they can transition the child as they see fit. Until then, doing anything such as transitioning the child without the parent knowing should be considered on par with with sexual assault.
I will only point out that the gov’t has one of those almost accomplished in some places (three meals), and has at least 1/3 of another covered (24/7 is right now often 8/5).
Also, you’re describing Brave New World. Which is the progressive utopia.
Another point: I am so tired of the Left citing the 1-5% or less of parents who are abusive as the justification giving them the right to do what they want because the child’s safety is at risk. We see this all the time where they take a rare event and then make it sound as if it was a daily event everywhere as a justification for their perverse concept of what is best.
And if this were a case of abuse, they should be calling CPS to come in and investigate, shouldn’t they? Not leaving it to the school counselor. (A growing number of teachers seem to have become very arrogant on the basis of their credentials and worldview.)
I was a School Nurse for nearly a decade and one of the smart things the School did was employee a Social Worker who did the actual counseling and any referrals to the Social Worker, abuse complaints or any other Physical, Mental, or Safety Health concern was handled by the School Nurse.
Nurses are mandatory reporters and can lose their License for not keeping parents informed. I would have flatly refused to obey this policy and would have reported it to the Nursing Board and Dept. of Education.
Yes I realize I would have been fired, but I would have made sure the policy was public before it was ever implemented.
Seems like textbook grooming to me.
“Don’t tell your parents.” seems to be what every child molester tells their victims. How is this different?
was questioning her parents’ ability to care for her
That is classic child abuse behavior. And it should be treated as such – preferably with older methods of punishment.
It is also classic Grooming behavior. Convincing the child that they can’t trust anyone but the Groomer.
This sounds to me like indoctrination, not education. The role of the school should be to educate. Matters of sexual orientation are not within the purview of the school. Such matters are best left to the parents. As public schools continue down this path of indoctrination, there arises a very strong case for abolishing them and go to a private school model with vouchers given to parents to fund tuition.
I almost totally agree.
“This sounds to me like indoctrination, not education.”
The problem is not “indoctrination”, which is fundamental to the education of children. The problem is “the WRONG KIND of indoctrination”. Parents differ about what kind of indoctrinations are appropriate. The One Best System of our government schools allows for only one kind of indoctrination.
The founding purpose of our government schools was to indoctrinate the children of Irish Catholic immigrants into Protestantism, using their parents taxes. This is evil. (And I’m not even Catholic.)
“If one accepts that gender identity must always be disclosed to parents, then there are any number of other important aspects of the child’s life and personhood that must also be disclosed to parents. … There’s no … limiting principle. …They can’t be required to pick and choose constantly, which information gets shared back. It’s just not tenable.”
Yes that is correct, because it is not the schools job to be the parent, it is the parents job and if a school believes that a child is being abused or neglected then there are avenues to deal with that. The real problem here is schools acting as if they are the parent.
“The real problem here is schools acting as if they are the parent.”
The worse problem is the parents acting as if they are not the parents.
“One of the basic rights that parents have is to decide whether to keep their children in private or public school.”
The judge gets this exactly right, and I suspect he also believes it’s a duty in addition to a right.
Get your children out of America’s best example of totalitarian socialism – before it’s too late.
Am I the only one baffled how we’ve jumped from hefty levels of Youth Protection Standards and clearly defined guidelines that anyone who advises a child to keep “secrets” in particular anything of a sexual nature, from parents is a predator?
Maybe Disney should relocate to Massachusetts, where they share the same anti-family social goals.