Parents of Trans-Identifying Children Have Rights Too!

Being a parent of a trans-identifying child is exhausting, demoralizing and terrifying. One of the worst aspects of this struggle is knowing that virtually every institution you deal with is actively working against your attempts to safeguard your child. Schools are among the very worst of these institutions. If you are tired of your school dictating the terms for how your child’s trans identification will be handled, there is good news. A growing number of parents are suing their schools—and winning!

In May of this year, a federal District Court in Kansas recognized long standing rights of parents to control the upbringing of their children. In Ricard v. USD 475, a teacher sought an injunction against a policy of the Geary County Unified School District requiring teachers and staff to respect a student's name changes, pronouns and trans-identity and to keep these facts secret from parents.  The teacher, Ricard, claimed this policy violated her first amendment rights to practice her religion, specifically that the policy with respect to parents would require her to lie, which is, in shorthand, a sin. Finding that the teacher’s exercise of religion was being infringed, the court required the school district to show a “compelling interest” in the infringing policy. A “compelling interest” is legal terminology for “darn good reason.”  

The school district claimed that its compelling interest in adopting this policy was that “if the home life is such that the—the student doesn’t want to be out to their parents, it’s not our job to do it.” In the quoted language below, Judge Holly Teeter flatly rejected this argument, finding that the school district could not have a compelling interest in violating parents’ constitutional rights to control the upbringing of their children (emphasis added):

"Moreover, as the District conceded at the hearing, parents in the United States have a constitutional right to control the upbringing of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972). This is not a trivial right—it is a fundamental one that is “perhaps the oldest of the fundamental liberty interests” recognized by the Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000). It rests on a fundamental premise that a child is “not the mere creature of the State,” and that parents—“those who nurture him and direct his destiny”—“have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” id.  And whether the District likes it or not, that constitutional right includes the right of a parent to have an opinion and to have a say in what a minor child is called and by what pronouns they are referred."

In November 2021, a group of parents sued the Kettle Moraine School District in Wisconsin for its policies regarding trans-identifying children under a similar theory.  Just a few weeks after Judge Teeter handed down the Ricard decision in Kansas, a state court in Wisconsin made a big decision for parents in that state. Judge Michael Maxwell denied the Kettle Moraine School District’s Motion for Summary Judgement, finding that the parents had made a sufficient showing that their constitutional rights were violated by the school district’s anti-parent policies. As a result, the school district would be required to mount a defense to the parents’ complaint. As a summary judgement decision, this was not a final victory for the parents, but the author notes that recently Kettle Moraine was in the news for a new policy that barred the use of chosen pronouns and overtly political displays by teachers.  

There are also other pending cases around the country where parents are seeking to enjoin these policies, including suits against school districts in Ludlow, Massachusetts and Tallahassee, Florida. Unfortunately, there are also cases where parents are suing after schools’ policies have caused injury, attempted suicide, to their child.  

Both the Ricard case and the Kettle Moraine case are lower court rulings, and under rules for precedence given to court cases, neither would be binding on any other court in any other jurisdiction. However, collectively, they provide a useful sanity check that remind parents, schools, and teachers that American law has for decades, if not longer, recognized the right and duty of parents, not the state, to be the primary decision-maker when it comes to raising children.  

The state or a government agency, such as a school board, must show it has a valid interest in infringing on parents’ rights and that the policy is reasonably necessary to advance that interest. In these cases, the schools will certainly argue that gender affirming policies are “lifesaving” and necessary to protect children from abusive or intolerant parents. While a refutation of this argument is beyond the scope of this article, parents reading this blog know enough to realize that there are many disturbing scientific and medical questions around social transition and gender affirming policies. As such, parents with good attorneys should be able to make convincing arguments in their favor.

This blog entry is not intended to provide legal advice and I am not trying to act as anyone's lawyer, but if you are a parent being bullied by school officials who dismiss your views about raising your child, you may, as lawyers say, have a case.