In Maryland’s Montgomery County Public Schools, parents are forbidden to know when their elementary-school children will read and discuss in class ideological books on sexual orientation, gender identity, and gender transitioning. They are also unable to opt their children out of these lessons.

Consider a few examples of these “LGTBQ+ inclusive” storybooks. One—required for pre-K—surveys a pride parade and what a child might find there, including an intersex flag, a drag king and queen, leather, underwear, and the name of a celebrated LGBTQ activist and sex worker. Another—focusing on a biological girl named Penelope who identifies as a boy—teaches that, as a matter of “love,” gender transitioning doesn’t need to “make sense.” A third encourages children to treat pronouns “like the weather. They change depending on how I feel.” A fourth invites children to talk with teachers about what it means to “like like” someone. You can read all the books here.

The ideological nature of the books is intentional. The School Board’s own documents reveal that it selected these books to “[d]isrupt the either/or thinking” on gender and sexuality. When teaching the books, the School Board tells teachers to say that it is “hurtful” for children to claim a boy is born a boy, and to teach that doctors only “guess about our gender” at birth. No wonder the School Board’s elementary school principals objected to the books as “not appropriate for the intended age.” They also explained that the School Board’s instructional guidance is “dismissive of religious beliefs,” “shaming” to children, and improperly presents opinions as “fact.”

The School Board forged ahead. At first it permitted—as required by Maryland law and Board policy—advance notice to parents about when the books would be read and the opportunity to opt their children out. Then, on March 23, 2023, the Board reversed itself. It announced that, for the new school year (the present one), no more notice or opt-outs would be allowed. The School Board has since acknowledged that “[a]ny child . . . may come away from [the] instruction with a new perspective not easily contravened by their parents.” “Once professional educators [adopt] curriculum,” the School Board’s counsel said in court, there’s no “free exercise claim.”

Faced with never knowing when their children’s innocence will be destroyed—and their families’ religious teachings undermined—a collection of Muslim, Christian, and Jewish families stepped up. This lawsuit, brought by my firm, the Becket Fund for Religious Liberty, does not challenge the Pride curriculum. Rather, it only seeks to restore the notice and opt-out rights required under Maryland law, the Board’s own religious diversity policy, and, most crucially, the U.S. Constitution.

Under the Free Exercise Clause, the Board’s notice and opt-out ban triggers strict scrutiny under at least four different cases: via the “enduring American tradition” of parental religious educational rights under Wisconsin v. Yoder, and also because the opt-out ban is neither neutral nor generally applicable under Tandon v. Newsom, Fulton v. City of Philadelphia, and Masterpiece Cakeshop v. Colo. C.R. Comm’n.

With the school year already underway, the parents are seeking emergency relief. So after an adverse ruling in federal district court—where the court held that the Board’s instruction imposed “no burden” on the parents’ religious liberty—the parents are now seeking emergency relief from the U.S. Court of Appeals for the Fourth Circuit. Their request is supported by amicus briefs from the nation’s pre-eminent religious liberty scholars, 18 state attorneys general, Jewish and Islamic advocacy groups, concerned parents, and the Ethics and Public Policy Center.

The School Board is now trying to trivialize the burden on the parents—claiming the books are just “storybooks featuring LGBTQ characters” that are “aimed at teaching reading comprehension.” We argued in reply that the Board’s use of alternative facts and alternative law is an implicit concession that it cannot prevail. The Fourth Circuit will soon decide. It should let kids be kids and let parents parent, just as religious liberty guarantees. 

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