Federal Court Affirms School Board in Preparing Gender Support Plans

A ruling by a federal appeals court last week means Maryland schools can develop support plans for transgender or gender-nonconforming students without the consent of their parents.

The 4th Circuit said the children – not the parents – endure the consequences of the support plans, thereby depriving the parents of the standing they need for a lawsuit.

“But, by failing to show any injury to themselves, the parents’ opposition … reflects a policy disagreement. And policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse,” the ruling said.

Maryland public schools follow state guidelines that allow support plans addressing the names and pronouns to be used for transgender or gender-nonconforming students. They also determine how much access the students can have to athletic programs, locker rooms, restrooms and extracurricular activities.

The plans identify safe spaces and other supports available for the students. By the end of last year, about 400 students in the county had completed gender identity support plans to change their names and pronouns, school officials said.

The plans can be completed by students without the consent, knowledge or input of their parents.

The lawsuit was filed as a class action by three unnamed parents against the Montgomery County Public Schools system. Similar court action is pending in other counties and states nationwide.

After the ruling, the school system issued a statement saying, “The case is resolved for now. MCPS supports the determination by the court today.”

The ruling responded to a claim by the parents that the Due Process Clause of the Constitution gave them a right to participate in any school or government procedures that affect their children.?

Child rearing rights have been upheld consistently by the courts. In 1997, the Supreme Court ruled in the case of in Washington v. Glucksberg that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to direct the care, upbringing and education of their children.

The 4th Circuit Court of Appeals in Richmond, Va., said in its ruling that the parents’ lawsuit touches on a different issue, namely their standing to sue under Article III of the Constitution.

Courts interpret Article III to mean standing limits participation in lawsuits only to persons who demonstrate an “injury in fact” to their legal interests.

In the Maryland schools case, the appellate court said allegations the gender support plans interfere with child rearing rights “are insufficient to create standing. To repeat, standing requires either a current injury, a certainly impending injury or substantial risk of a future injury. And the parents do not allege one.”

The appellate court sent the case back to the federal district court to dismiss it.

The appellate ruling affirms an earlier district court decision. The district court sided with the school board in saying the gender support plans promote the state’s goal of protecting students’ safety and privacy.

Attorneys for the school board agreed with parents that keeping the support plans secret was not their first choice but safety of the students was a higher priority. They cited studies showing transgender students and persons with gender dysphoria have high rates of suicide and mental illness, often as a result of harassment.

The 2-to-1 appellate ruling drew a dissent from Judge Paul V. Niemeyer. He said parents’ oversight of their children should be the top priority even after balancing safety and privacy of the students.

He cited constitutional law rulings in favor of parental rights in concluding, “This means that the parents have, in the first instance, the fundamental constitutional right ‘to make decisions’ regarding their children’s care.”

An attorney for the parents said they were considering further legal options.

“We’ve got several possibilities,” attorney Frederick Claybrook told The Well News. They include a second review by the 4th Circuit or an appeal to the U.S. Supreme Court.

“Obviously we agree with the dissent,” Claybrook said. “We think that the parents are being injured right now because it's affecting family dynamics.”

The case is John and Jane Parents 1, et al, v. Montgomery County Board of Education, et al, 4th U.S. Circuit Court of Appeals, No. 22-2034.

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