More than 1,000 public school districts across the country in 38 states and the District of Columbia enforce written policies that authorize or require withholding the gender identity information of minor students from their parents. These districts represent 18,658 schools attended by nearly 11 million students, making schools with these “gender support plans” the norm and not the exception.

Within this fraught and politically charged arena, parental rights, school administration, and student confidentiality collide. And that collision has led to a flurry of federal litigation challenging the constitutionality of these policies by parents who claim they are entitled to information on how their minor children express themselves.

But in this litigation, not all judges have assessed parents’ claims correctly.

The parental right—rooted in substantive due process analysis and the Constitution’s Fourteenth Amendment—is neither absolute nor unqualified. While its judicial recognition dates to the Supreme Court’s 1923 ruling in Meyer v. Nebraska, there are categories of educational decisions in which parents do not have a cognizable constitutional interest, such as in the development of curriculum or a school’s administrative policies (dress code or use of school facilities, for example). But gender identity—how a child chooses to identify or express herself—is a matter that goes to the heart of parenting, as one federal court has held.

Plaintiff parents claim that school policies that hide their children’s gender identity information from them violate their rights, and they have challenged the constitutionality of these policies on both a facial and as-applied basis.

Facial challenges to gender policies have often been hobbled by determinations that plaintiff parents lack standing because they cannot demonstrate that their children express a gender identity different from their natal sex and require a gender support plan. But this conclusion ignores the most relevant precedent in assessing facial challenges to school policies: Parents Involved in Community Schools v. Seattle School Dist. No. 1. There, the Supreme Court held that the parents had standing to sue when the practices and policies of a school threatened the rights and interests of their minor children. This was so even though the harm (simply being forced to participate in an unconstitutional, race-based system) depended on a chain of future events involving the decisions of others, and even though parents were unable to demonstrate their children would be directly impacted by the policy.

The Supreme Court has held that standing does not “uniformly require plaintiffs to demonstrate that it is literally certain” that parties will suffer the alleged harm, although that is the standard applied by many of the federal courts tasked with assessing the constitutionality of school gender policies. Rather, courts have allowed a showing of imminence through alternative means—such as “preenforcement review of facial due process challenge[s].”

Certain parents, however, have brought as-applied challenges to school gender policies. They argue that schools that take active steps to facilitate their minor children’s “social transition” and then hide that information interfere with the protected parent-child relationship. Appropriately employing the vehicle for redress against those state officials—a civil lawsuit filed pursuant to 42 U.S.C. sec. 1983—requires a determination of whether such state action was an exercise of executive or legislative authority.

Executive action generally involves “a specific act of a governmental officer that is at issue.” Characteristically, these exercises apply to only one person, or a small group of people. By contrast, legislative acts generally apply to a larger segment of society; laws and regulations are common examples. And while executive actions are judged by a deferential “shocks the conscience” analysis, legislative actions are judged instead by a rights analysis that utilizes traditional tiers of scrutiny. In the latter, courts will apply strict scrutiny judicial review when fundamental rights are at issue to determine if the policy was narrowly tailored to achieve a compelling state interest.

In most cases challenging school gender policies, federal courts have deemed the policies to be an exercise of executive authority, and therefore, subject to a “shocks the conscience” analysis. In each, plaintiff parents have failed to demonstrate the school exercise was sufficiently “conscience shocking” so as to render it unconstitutional.

But while parents should be able to successfully challenge school gender policies under either standard (courts have held, for example, that in executive exercise of authority, interference with a protected familial relationship may rise to the level of “conscience shocking”), school gender policies—as they apply to an entire student body, and not a single individual—are more properly assessed as exercises of legislative function.

For example, the Supreme Court determined in Harrah Independent School District v. Martin, that a particular school board policy was “endowed with a presumption of legislative validity” because it did not implicate a fundamental liberty interest, but rather only an interest in providing its students with competent and well-trained teachers. Therefore, rational basis review was appropriate—something the school district easily satisfied.

For parents challenging school gender policies, however, a court should utilize a strict scrutiny analysis because the parental interest in the rearing of one’s own child is considered “fundamental.” Therefore, such school policies are presumptively unconstitutional unless schools can demonstrate that the policies are narrowly tailored to achieve a compelling interest. But the banning of communication between parent and school regarding the parent’s minor child, the falsification of student records hiding a child’s gender identity, and the active obfuscation of a child’s gender identity expression—these are not the most narrowly tailored means to achieve the school’s goal of preventing harm to a child from a “non-affirming” or unsupportive parent. Assuming, for the sake of argument, that the state’s interest in preventing parental bullying or abuse of a transgender-identified student constitutes a compelling state interest, school gender policies would need the kind of narrow tailoring that accounts for both court precedent on the rights of parents, and the duties of school officials under related statutory authority to mandatorily report any suspected abuse of the minor students who attend their school.

In the end, the Supreme Court will likely weigh in on the precise contours of parental rights vis-a-vis children’s expressions of gender identity at school.

As of the writing of this piece, a petition for writ of certiorari has just been filed at the Supreme Court—the second of its kind in less than two months. A dearth of correct legal analysis in the lower courts calls out for high court review and clarification.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].