Yesterday, the United States Supreme Court refused to review a Fourth Circuit court’s decision that a group of Maryland parents had no standing to challenge their schools’ secret gender transitioning policy.
We covered the appellate court’s ruling last year here:
As we wrote then, the 2-1 decision marked the latest in a series of losses in federal court for parents suing to protect their children from such policies that permit schools to encourage students’ gender transitioning behind their backs.
The Montgomery County school system has adopted gender identity guidelines that mirror those in other schools we covered here.
As with other schools’ policies, all this “social transitioning” takes place without the knowledge or consent of the students’ parents. For parents deemed to be “unsupportive”—again, based on the student’s word—Montgomery policy authorizes the school to continue to withhold information from them about their children’s new identity.
And for teachers who aren’t sure how to keep up this charade, the school offers more guidance:
“[s]chools should seek to minimize the use of permission slips and other school-specific forms that require disclosure of a student’s gender or use gendered terminology” and … “[u]nless the student or parent/guardian has specified otherwise, when contacting the parent/guardian of a transgender student, [Montgomery County] school staff members should use the student’s legal name and pronoun that correspond to the student’s sex assigned at birth.”
The Maryland parents’ case reached the Fourth Circuit when they appealed the district court ruling dismissing their lawsuit as a challenge to their schools’ curriculum over which they have no say.
On appeal, the school board challenged for the first time the parents’ standing to bring their lawsuit in federal court, arguing they failed to allege the type of injury required to show it.
The majority agreed. They said that the parents had only challenged the part of the “parental preclusion” policy that permits schools to withhold information about a student’s gender identity from parents. And because they had not alleged that their children had gender support plans, were transgender or were even struggling with issues of gender identity, they failed to allege the injury necessary to support standing i.e., the constitutional right to sue.
Well, we wondered at the time, maybe that’s because the school is keeping the parents in the dark about whether their kids have “gender support plans” in the first place. How could they ever allege the injury necessary to show standing if they have to wait to know what they can’t ever know because the school is hiding it from them—a point the parents raised in their petition for writ of certiorari filed last year: By the time one of their children experiences gender dysphoria, the school may already have begun transitioning them, and by then the damage is done, and all without the parents’ knowledge, much less consent.
“Living under this Policy affects them now,” the parents argued in their petition, citing Judge Niemeyer’s dissent in the court below. He wrote that the parents do have standing, both because they were suffering current injury and because they are the targets of threatened injury, as the school system was currently enforcing the policy throughout its system and at every age level.
We can only speculate why the Supreme Court denied the parents’ application for cert., because there was no accompanying comment or opinion. It’s possible the standing question overly complicated the Court’s consideration of what should otherwise have been a straightforward issue: whether secret social transitioning policies violate the parents’ fundamental right to direct the care and upbringing of their children.
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