Supreme Court Justice Brett Kavanaugh was correct earlier this month in expressing that his tribunal accepts too few cases, and the court reiterated this pattern by leaving parental rights unprotected this week.
The Supreme Court denied a certiorari petition in Parents 1 v. Montgomery County Board of Education, where parents appealed a lower court ruling that they lacked legal standing to challenge school policy on gender identity issues. If litigants lack standing, implying a genuine, personal interest in the outcome of a real “case” or “controversy,” courts will dismiss their claim without addressing the legal merits of their issues.
In Parents 1, two conservative Trump-appointed judges on the 4th U.S. Circuit Court of Appeals outvoted Reagan-appointed Judge Paul Niemeyer, ruling that parents lacked standing to challenge school guidelines. According to Niemeyer, these guidelines “invite all students in the Montgomery County public schools to engage in gender transition plans with school Principals without the knowledge and consent of their parents.”
Not even four of the nine justices agreed to review the essential question of whether the specific parents who sued had standing. If standing were granted, the case could be revived in a lower court, allowing its central complaints to be addressed. The justices’ refusal is puzzling. The “standing” issue here is significant, not to mention that the broader topic of parents’ rights regarding transgender policies is a widespread cultural issue. The high court has repeatedly avoided ruling on numerous questions related to the transgender trend, making its denial in Parents 1 appear as another instance of its discreditable avoidance.
Niemeyer’s dissent on the 4th Circuit, however, convincingly argued that the litigating parents do possess substantial legal standing.
His colleagues had set extremely narrow criteria for court access, stating that since these parents “have not alleged that their [own] children have gender support plans, are transgender, or are even struggling with gender identity issues,” they themselves have suffered no “injury” from the guidelines, even if other families might have. Without clear or imminent injury, standing doesn’t exist.
Niemeyer dismantled this argument. The parents objected to a policy that intentionally keeps parents in the dark about their minor children’s actions toward gender “transitions,” while the school policy actively aids the transition. Therefore, the policy injures all parents who remain unaware of what is happening to their children until potential harm is already done. The injury lies in the secrecy itself.
Niemeyer pointed out accurately that for at least a century, courts have recognized that parents have “primary responsibilities to determine what is in the minor children’s best interests concerning their support, care, nurture, welfare, safety, and education.” Parental rights were upheld as constitutionally fundamental in the 1923 case of Meyer v. Nebraska, and those rights were reaffirmed in numerous subsequent cases.
The secrecy itself harms the parents by excluding them, as Niemeyer observes that the school system is “taking over the rightful position of the Plaintiff Parents and intentionally hindering them from counseling their own minor children on an important decision with lifelong repercussions and from providing additional professional assistance to their children.”
Without delving into all the case law Niemeyer cited in support of the parents’ standing, it’s evident that his dissenting opinion alone was sufficiently strong for the Supreme Court to consider his arguments.
Instead, the justices allowed the 4th Circuit decision to stand unexamined. As a result, not only do these parents miss the opportunity to present their case, potentially reaching the Supreme Court, but they also miss the chance to argue before the Supreme Court regarding why they qualify for court access to begin with.
If, in the interim, the schools secretly assist one of their children in beginning a gender transition, the parents might not become aware of the injury they wish to contest until it is nearly irreversible. Thus, they could face defeat before even entering the legal battle. This is neither good law nor justice.
