A policy that allows school staff to keep a child’s transgender status a secret does not violate a parent’s fundamental rights under the New Hampshire constitution, the state’s Supreme Court has held.
The policy was challenged by a New Hampshire mother who sued the Manchester school district after finding out from a teacher that her minor child (identified as M.C.) had asked school staff and students to be called by a name typically associated with the opposite sex.
According to the lawsuit, when the mother first asked the school to continue using her child’s given name and sex-appropriate pronouns, two teachers wrote to her saying they were willing to comply.
“I do think that a parent should be giving permission for their child to be called by any other name,” one allegedly said. “We will absolutely respect your wishes and continue to call [M.C. by M.C.’s birth name] on team!” wrote another, according to the lawsuit.
But minutes later, the lawsuit says, the school principal emailed her, repudiating the teachers’ cooperative responses:
Good Morning [Jane Doe]. While I respect and understand your concern, we are held by the District policy as a staff. I have quoted our district policy below, which outlines the fact that we cannot disclose a student’s choice to parents if asked not to. If [M.C.] insists on being called [M.C.’s desired name] as a staff we have to respect that according to the policy or unfortunately we can be held accountable despite parents’ wishes.
The principal was reiterating district policy that, absent the child’s consent, “[s]chool personnel should not disclose information that may reveal a student’s transgender status or gender nonconforming presentation to others.” The school justified the policy as recognizing transgender students’ “rights” to privacy.
But that policy violated her fundamental parental rights, the mother alleged, among other claims, by encouraging school officials to affirmatively conceal her child’s “open and public” gender identity transition in school from her.
After all, if the whole school knows the child is transitioning, why shouldn’t the parent?
Notwithstanding these arguments, the trial court found the policy did not infinge a fundamental parenting right so as to warrant the application of strict scrutiny. And because the policy was rationally related to legitimate governmental interests, it was not unconstitutional, the court held, dismissing her claim.
In a 3-1 decision on appeal, the New Hampshire Supreme Court agreed.
Unlike other “severe intrusions” involving parental custody or guardianship, the court ruled that “by its terms, the Policy does not directly implicate a parent’s ability to raise and care for his or her child.” [emphasis added]
But in her lawsuit, the mother challenged the policy as unconstitutional both on its face and as applied to her. And recall, the principal told her the school was bound by the policy not to disclose trans students’ private information to their parents.
The court’s response? The principal got the policy wrong:
[The policy] encourages school personnel to not disclose information that may reveal a student’s transgender status, but contrary to the principal’s assertion to the plaintiff, the Policy does not require non-disclosure. [emphasis added]
In other words, without the double negatives, the court read the policy’s directive that “[s]chool personnel should not disclose information” about trans students to mean they can, it’s just that they’re allowed not to.
Having rejected the principal’s stated response—and avoided the issue of how the policy was applied to the mother in practice—the court went on to recite a litany of other things parents can still do with their children, because the school policy doesn’t prevent them. Things like “talking to their children”; “choosing where their children live and go to school”; or “deciding what their children may do in their free time.”
None of which have anything to do with the mother’s core complaint that the school is facilitating her child’s delusion that she belongs to the opposite sex.
And while the school justifies its policy based on principles of “safety” and “inclusion,” such secret social transitioning—starting with using their preferred names and pronouns—puts the child on the path to permanent, life-altering medical transitioning. All without the parents’ knowledge, much less consent.
The court zoomed past these thorny issues to conclude there’s no “constitutional dimension” to any interference with parental rights resulting from the school’s non-disclosure policy, compared to those implicated by parental custody and termination cases. And it read the lower court’s order to find—without any explanation as to how—that the policy survives both the facial and “as applied” constitutional challenges under the more lenient rational basis review.
After puzzling through the majority opinion, Justice Melissa Countway’s dissent comes as a relief.
In her view, the policy means what it says, the way the principal said it.
Therefore, the court should have applied strict scrutiny when it reviewed the school policy that “on its face interferes with a parent’s fundamental right to parent” she wrote. Because “accurate information in response to parents’ inquiries about a child’s expressed gender identity is imperative to the parents’ ability to assist and guide their child,” the school’s “withholding of such information implicates the parents’ fundamental right to raise and care for the child.”
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