In the United States, approximately 1,044 school districts (impacting more than 10 million students) have transgender or “gender nonconforming” policies that require school administrators and district personnel to keep a student’s transgender status hidden from parents. But based on the U.S. Supreme Court’s century-old recognition of parents’ fundamental, constitutional right to direct the upbringing of their children, it hasn’t taken long for those policies to elicit federal legal challenges. Parents in at least six states have done so, but a recent federal court decision halting such a policy doesn’t bode well for school administrators keen to keep parents in the dark about something so fundamental.

A few days ago, in Mirabelli v. Olson, California U.S. District Judge Roger Benitez preliminarily enjoined the Escondido Union School District’s (EUSD) confidentiality policy on behalf of two plaintiff teachers at Rincon Middle School. Elizabeth Mirabelli and Lori Ann West sued EUSD, the California State Board of Education, and State Superintendent, among others, under 42 U.S.C. § 1983, a federal law that provides a cause of action for individuals whose constitutional rights are violated by state or local government officials. The lawsuit claimed that the defendants violated the plaintiffs’ rights under the Constitution’s Free Speech and Free Exercise Clauses based on a policy that enforced faculty confidentiality and non-disclosure regarding a student’s newly expressed gender identification. According to plaintiffs, the policy allowed activists to “coopt school districts to push gender theory.” 

In his order, Benitez wrote that “a parent’s right to make decisions concerning the care, custody, control, and medical care of their [sic] children is one of the oldest of the fundamental liberty interests that Americans enjoy.” And because teachers who revealed students’ transgender status to “individuals who do not have a legitimate need for the information” would be considered to have engaged in discriminatory harassment, “Mirabelli and West face an unlawful choice along the lines of ‘lose your faith and keep your job, or keep your faith and lose your job.’”

Benitez called the policy a “trifecta of harm,” and detailed how the Parental Exclusion Policy:

harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs [teachers] who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students—violating plaintiffs’ religious beliefs.

In so holding, the California trial court parted ways with a ruling by a federal trial court in Maryland which threw out a lawsuit filed by parents challenging a similar policy back in August 2022. The parents in that case claimed that the Montgomery County Public Schools policy was “expressly designed to circumvent parental involvement in [a] pivotal decision affecting” their children’s care. They advanced claims under the Constitution’s 14th Amendment—which broadly ensures parents’ rights to direct the education and upbringing of their minor children—and the Family Educational Rights and Privacy Act (FERPA)—which provides parents with the opportunity and right to inspect and review their child’s education records.

But Judge Paul Grimm ruled in favor of the school district and dismissed the suit. In assessing the constitutionality of the policy, he concluded that the parents lacked a fundamental right under the 14th Amendment to be “promptly informed of their child’s gender identity, when it differs from that usually associated with their sex assigned at birth,” regardless of their child’s wishes or the detrimental effect the disclosure might have on that child.

The 4th Circuit upheld the trial court’s dismissal of plaintiffs’ lawsuit last month, but it did so for a lack of standing—something not raised by the school district at the trial level. Writing the majority opinion for the divided three-judge panel, Judge Marvin Quattlebaum wrote that the parents had not alleged a concrete injury sufficient to confer Article III standing as required by the Constitution and could prove nothing more than a “speculative fear” that they would be impacted by the policy. Specifically, Quattlebaum noted that the parents could not demonstrate their children had gender support plans, were at increased risk of transitioning, or had had any discussions with school officials about gender identity or gender-transition issues.

He urged them to seek a remedy at the ballot box.

Judge Paul Niemeyer dissented, pointing to the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District. In that case, the Court found that plaintiffs had standing to challenge assessing the constitutionality of policies geared toward racially balanced school districts even though the alleged harm depended on a chain of future events. Niemeyer argued that the majority’s reading of the parents’ complaint was unfairly narrow and subjected all parents in the district to the mandatory school policy without any avenue of redress, even though their fundamental parenting rights had—simply by virtue of the policy’s express design in circumventing parental involvement—already been infringed.

Parents’ primary right and responsibility to direct the upbringing of their children is both longstanding in law and ancient in origin. Whether future courts will recognize this right remains to be seen, although they should.

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].