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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