Parents Challenge School’s Gender Identity Policy at Supreme Court

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Wisconsin’s Eau Claire Area School District’s gender-identity policy poses a significant challenge to fundamental parental rights. A group of parents is now pushing back, questioning the extent of public education’s authority, particularly regarding school districts keeping secrets about the students they serve.

This week, the Wisconsin Institute for Law and Liberty (WILL) and America First Legal submitted a petition for certiorari to the U.S. Supreme Court, urging them to consider Parents Protecting Our Children v. Eau Claire Area School District. Filed initially in 2022, the lawsuit claims the school district has a policy designed “to facilitate gender identity transitions at school and to hide this from parents who would disagree with their child’s decision to change gender identity.”

The district court and the Seventh Circuit U.S. Court of Appeals dismissed the case. In the appellate court’s ruling, Magistrate Judge Steven Crocker acknowledged the parents’ legitimate concerns regarding the policy’s potential applications, but determined that no parent had suffered harm due to the policy.

“No doubt Parents Protecting’s allegations punch with conviction and concern,” Crocker wrote. “But nowhere does the complaint allege that even one of the association’s members — any particular parent — has experienced an actual or imminent injury attributable to the Administrative Guidance or a Support Plan.”

However, WILL argues in the Supreme Court appeal that the pro-transgender policy directly affects the parents, creating a secretive environment about critical parental concerns. Similar policies are eroding parental rights nationwide, the court filing asserts.

“Thousands of school districts across our country have these policies. If parents cannot challenge them until after their children are harmed, they have no way to protect their kids other than pulling them from public school,” said Luke Berg, deputy counsel for the Milwaukee-based conservative public interest law firm.

‘School Is Now Like Las Vegas’

Parents Protecting Our Children, who have kids in the Eau Claire school district, argue they don’t want the school staff making decisions about their children without their knowledge or consent.

In the Supreme Court appeal, the parents raise a crucial legal question: “When a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — do parents who are subject to such a policy have standing to challenge it?”

WILL contends that this case, and others like it, represents a significant failure of the federal judicial system.

“School districts across the country — by one count, over 1,000, covering nearly 11 million students — have adopted policies to facilitate minor students, often of any age, changing their gender identity at school (names, pronouns, and bathroom use) in secret from their parents,” the court filing states. “Many of these policies, like the Eau Claire School District’s, prohibit teachers from discussing with parents what is happening with their own child at school and even require staff to actively hide things from parents.”

“School is now like Las Vegas: ‘What happens at school stays at school,’” the petition asserts, pushing for the Supreme Court to acknowledge the national implications. “These policies have already generated over two dozen lawsuits … with many more to come.”

‘I’m Your Mom Now’

According to Eau Claire public school system’s Administrative Guidance for Gender Identity Support, updated in late 2021, the district aims “1) to foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression; and 2) to facilitate compliance with district policy.”

The guidance requires staff to “inquire which terms [names and pronouns] a student may prefer and avoid terms that make the individual uncomfortable; a good general guideline is to employ those terms which the individual uses to describe themself.” Employees should also ask about the student’s preferred bathroom and locker room, athletic teams, and “transition plan” — be it social, medical, or surgical.

“Some transgender, non-binary, and/or gender-nonconforming students are not ‘open’ at home for reasons that may include safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent/guardian,” the policy states.

Eau Claire North High School garnered national attention in 2022 after a staff member reportedly posted a sign on a school door declaring, “If Your Parents Aren’t Accepting Of Your Identity I’m Your Mom Now.”

As Newsweek reported at the time, Eau Claire teachers had been required to attend an “equity” professional development day focusing on “Safe Spaces.” The event included a slide instructing teachers that “…parents are not entitled to know their kids’ identities. That knowledge must be earned.”

Eau Claire Area School District Board President Tim Nordin told Wisconsin Public Radio in March that the district policy has remained unchanged since the lawsuit was first filed.

“We remain convinced that not only is this supportive for students and for families, but that it’s fully within the rights of the students and families,” Nordin said. “We’re going to continue to support them as best we can.”

‘Constitutional Right’

However, WILL and America First Legal argue that parents have primary rights in their children’s lives that certainly extend to educational settings. The petition highlights that the court has consistently acknowledged parents have a “fundamental constitutional right to make decisions concerning the rearing of [their] own [children].”

“As any parent knows, parental authority includes the right (and the solemn responsibility) to say no to children’s often short-sighted desires when necessary to protect them from themselves,” the petition argues, adding that even the Biden administration’s recent Title IX rule stresses the importance of parental rights. The federal rule states that “nothing in the final regulations disturbs parental rights,” and that “When a parent and minor student disagree” — about the “name or pronouns used at school,” for example — “deference to the judgment of a parent … is appropriate.”

WILL has been a notable player in the parental rights battle. The law firm engaged in a lengthy legal struggle over the Madison Metropolitan School District’s gender identity policy. The case went to the Wisconsin Supreme Court, which dismissed it because the mother who was the plaintiff decided not to send her child to a Madison district school, therefore losing standing in the lawsuit. The dismissal did not address the case’s merits.

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