A high-stakes legal battle over secret “social transitioning” in school has reached the United States Supreme Court, in a case that could have nationwide consequences for parental rights and school transparency.
Earlier this month, parents Stephen Foote and Marissa Silvestri filed a petition for a writ of certiorari with the Court, challenging a lower court ruling that denies their right to be informed when their child undergoes a secret gender transition at school. In February, the U.S. Court of Appeals for the First Circuit ruled the school’s non-disclosure policy was necessary to promote a “safe and inclusive” environment for all of its students.
We’ve covered the lawsuit, Foote v. Ludlow, from the beginning here:
This is one of many cases we’ve reported on—lawsuits that pit parental rights against the state’s purported interest in protecting “trans” children. It’s also one of dozens that have sharply divided lower courts across the country on the issue of parents’ rights.
And that, the parents’ lawyers at Alliance Defending Freedom say, is what makes it an ideal case for the Supreme Court to consider, urging it to overturn the appeals court ruling. Doing so will resolve multiple circuit splits to make clear that parents have the right to be told—and to object—when their child’s school engages in social transitioning, they argue.
The parents brought their original 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.”
If not for that one brave teacher—later fired for coming forward—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.
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.
And yet, flouting these objections, the school continued to sex-transition their daugher, the lawsuit says, claiming they were keeping the daughter “safe”—from her parents.
According to the appeals court, the measures the parents objected to were “curricular and administrative” decisions over which they had no say. And, 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.
In their petition, the parents urge the Court to reject the First Circuit’s “flawed view” of their rights.
First of all, by characterizing the school protocols as “curricular and administrative” decisions, the court affords parents “virtually no rights after the decision to enroll their children in public school.”
“The First Circuit’s disregard of parents’ decisionmaking is in deep tension with other circuits that require evidence of abuse or imminent harm before even the state’s child-protective services may interfere with the parent-child relationship,” the petitioners argue. The parents should not be required to allege school “coercion” to protect their rights to direct the upbringing and care of their children.
The decision below also “erases parental involvement in a child’s mental health,” against Supreme Court precedent and Third Circuit caselaw, the petitioners say.
Simply put, “Parental-rights jurisprudence in the lower courts is a mess”—a mess they urge the Court to clean up once and for all.
This is not the first time the Court has been asked to wade into the conflict over secret social transitioning in schools. Last year, it declined a petition to review a similar case involving a Wisconsin school’s gender identity plan. Justice Alito, joined by Justice Thomas, dissented. Noting that more than 1,000 districts in the country have reportedly adopted similar policies, Alito saw it as a missed opportunity to take up a question “of great and growing national importance.”
This time, the petitioners say, the Court should grant review: “Parents across the country need this Court’s swift intervention, lest schools continue to mold their children’s sexual identity without parental input.”
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