In a long-awaited decision, the First Circuit Court of Appeals has ruled the parents of an 11-year old girl had no right to be notified when she “socially transitioned” to another sex in school. The court held the school’s non-disclosure policy was necessary to promote a “safe and inclusive” environment for all of its students.
Stephen Foote and Marissa Silvestri brought their lawsuit against the Ludlow, Massachusetts school committee in 2022 after they learned from one of its teachers that their sixth-grade daughter had secretly transitioned to “genderqueer.” We covered the case in detail here.
If not for that one brave teacher—later fired for coming forward—according to the court filings, the parents might never have known: Under the school’s policy, when a student asks to be called by a new name and pronouns of a different sex, staff members must keep it a secret from the parents, unless they have the student’s consent.
The parents claimed that withholding information about their child’s gender identity violated their constitutional rights to raise and make medical and mental-health care decisions for her.
U.S. District Court Judge Mark G. Mastroianni dismissed their lawsuit in December 2022. They appealed to the First Circuit, and in September 2023 the court heard oral arguments that we covered here.
Finally last week, the First Circuit affirmed the lower court’s dismissal, in a per curiam (jointly issued) decision by three judges—one appointed by Obama and two by Biden.
The school’s secret use of gender-affirming pronouns or a gender-affirming name was not a “medical” treatment, the court held, rejecting the parents’ claim. “Using the [s]tudent’s chosen name and pronouns,” they wrote, is “something people routinely do with one another, and which requires no special training, skill, medication, or technology.”
But the parents didn’t see anything “routine” about the school helping their child turn “genderqueer” behind their backs. They objected to teachers talking in private with their child to explore and experiment with “alternative or discordant gender identities” and to facilitate their child’s gender-affirming social transitioning. They also objected to the school counselor allowing her to use the bathroom of her choice. And they objected when the former school librarian asked the students to state their pronouns as part of an assignment.
According to the court, the parents should trust the school’s experts—and stop sticking their noses where they don’t belong. The measures the parents objected to were “curricular and administrative” decisions over which they had no say: “Our pluralistic society” assigns them to “the expertise of school officials, charged with the responsibility of educating children.”
After all, it wasn’t as if the children were being forced into switching sexes: “[P]roviding 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,” the judges wrote.
But the court’s characterization of gender indoctrination is disingenuous—it’s not just like any other topic taught in school. From the very beginning of their decision, the judges misrepresent the true nature of secret social transitioning, stating: “Courts nationwide have faced all manner of important litigation involving matters of gender identity and gender expression, including use of folks’ preferred pronouns. Today’s case falls under that broad header,” they say.
In fact, it does not. The difference in this case, of course, is that the “folks” are children—here and invariably, emotionally vulnerable children with a host of mental health problems. The record showed the Ludlow school wasn’t merely keeping secrets from the parents about their child. They were proactively socially transitioning the children entrusted to them, as we wrote in the original post here:
The Ludlow school staff played an active role in socially transitioning students to other genders, the parents allege. [Complaint par. 58] The chief instigator was the former school librarian: She advertised her own “nonbinary” status to the school community and told students not to refer to one another as “boys” and “girls.” She also met one-on-one with both their son and daughter, the parents say in the complaint, “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 their knowledge or consent. [Complaint, par. 90]
We’ve covered the ongoing controversy over secret social transitioning in public schools in the posts collected here, and they all make one thing clear: Secret social transitioning—starting with using students’ preferred names and pronouns—puts the child on the path to permanent, life-altering medical transitioning. And still, school districts like Ludlow insist on keeping parents in the dark to protect their students’ “safety.”
Ludlow may yet be forced to rescind its policy—which was unwritten and based on non-binding state guidance in the first place. On January 29, the President ordered the Department of Education, along with other agencies, to develop an “Ending Indoctrination Strategy” by late April. The Executive Order explicitly targets secret social transitioning of a minor student—“including through school staff or teachers or through deliberately concealing the minor’s social transition from the minor’s parents”—with the threat of losing federal funding. That is, at least until the judiciary gets its hands on that executive mandate to protect parents’ rights.
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