After the U.S. Supreme Court declined to hear a case surrounding a public school district’s policy of concealing student gender transitions from parents, a veteran attorney who worked at the U.S. Department of Education is explaining the massive implications.
Earlier this week, the high court declined to hear Parents Protecting Our Children, UA v. Eau Claire Area School District, a case that would have put parental rights front and center.
Sarah Parshall Perry, a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation and a former senior counsel at the U.S. Department of Education, said the battle centered on policies implemented at the Eau Claire Area School District in Wisconsin.
“The Supreme Court decided that they were not going to take up what was a challenge to the constitutionality of a school policy keeping gender identity information of minor children … confidential from their parents,” Perry said. “Now, this is a shocking policy, but it is one of about 1,200 policies across the country.”
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In fact, the legal expert said there are around 12 million American kids in public schools across America who fall under such guidelines.
“If they identified as transgender or gender dysphoric, or … using different names or pronouns, their parents could not find out that information on the child’s say-so,” Perry said. “All a child would have to do is say, ‘Keep that information confidential for my parents,’ and that’s exactly what would happen.”
Before the case reached the Supreme Court, the 7th U.S. Circuit Court of Appeals had said the parents in the case lacked standing, meaning they had not been harmed and, thus, couldn’t take action. Perry explained what this means in practice.
“An interesting thing to note about this particular case coming out of Wisconsin is that the individual group of parents, a coalition of parents, did not have any children who identified as being transgender or with gender dysphoria,” she said. “It’s significant because the parents challenged the policy on a facial basis.”
This is a term that essentially means the parents believed the school district policy is unconstitutional in and of itself and must be struck down for the good of all. On the contrary, an as-applied constitutional challenge is one that sees a law or policy as unconstitutional in a specific context.
Perry said the facial argument, in her view, is appropriate for the parents’ case.
“I think that’s precisely the correct approach,” she said. “I think they have standing or the ability to suffer a concrete injury sufficient so that a court can rectify that injury. But this is interestingly the second dismissal of a case like this with a request for review from the Supreme Court in just this term alone.”
Ultimately, Perry said one doesn’t need to be “injured” before they demonstrate an “imminent possibility of harm.”
“The harm’s already occurred because the parental right has been breached by the school district,” she said.
Adding to the complexities of these cases are the important juxtapositions that must be made between what minors are permitted — and not permitted — to do in other contexts.
For instance, many school districts require signed parental consent for a school nurse to administer Tylenol and other over-the-counter medications — and that’s not all.
“We do not let these minor children sign contracts, register for the draft, buy alcohol, buy cigarettes — a multitude of restrictions, and, yet, suddenly, within the context of gender identity, all the courts have taken a hands-off approach and have presumed that a child is aware of the lifelong consequences of a desire to ostensibly transition,” Perry said. “What is particularly pernicious about these school confidentiality policies is that they result in what’s known as social transitioning.”
Teachers and others are mandated to comply with everything from preferred bathrooms to amended pronouns. But, Perry warned, social transitions could pave the way to a medical transition, which involves puberty blockers, cross-sex hormones, and even surgery — steps that can permanently change an individual’s life.
“These are consequences that a minor child at the age of 14, 15, 16, cannot possibly conceive of,” she said. “They will have no understanding of whether or not they want to father a child, bear a child, carry a child, nurse a child, whether or not they ultimately want to be fertile in the future. These are not consequences to which these minor children have full awareness.”
Considering the Supreme Court’s decision not to hear the case, Perry said it would likely take a “different type of vehicle” to get the justices to hear a similar legal dispute. She mentioned a battle coming out of the 11th Circuit Court of Appeals, one she believes might meet a stronger criteria.
“[In this case] this parent didn’t just bring a facial challenge to the constitutionality of a Leon County School District policy — the exact same confidentiality policy, but also it was an as-applied challenge in that her daughter was meeting privately with school counselors, school administrators, being referred to by a different name — with different pronouns. She was on the track. The train had already left the station and by the grace of God she discovered these private meetings, confronted the school leadership, talked to her daughter, her daughter was able to, under her mother’s care and nurturing love, be able to say, ‘I’m actually really worried about something else. I’m concerned, or depressed, or anxious about something else.'”
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This parent, Perry believes, can bring not only a facial challenge to the policy, saying it’s unconstitutional for all, but also an as-applied challenge citing her own concrete injuries in the process.
“That is the type of vehicle I think the Supreme Court is ultimately going to have to take at one point or another,” she said. “There will be parents who have suffered that irreparable damage of having their child socially transitioned. And, at that point, I believe the Supreme Court cannot look away.”
It should be noted that Justices Samuel A. Alito Jr. and Clarence Thomas issued a dissent explaining why they would have heard the case, noting that it is of major national significance.
“The 7th Circuit suggested that a parent could not challenge the district’s policy unless the parent could show that his or her child is transitioning or considering a transition,” the duo wrote. “But the challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the ‘identities’ of their children, especially if the school believes that the parents would not support what the school thinks is appropriate.
“Thus, the parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative.’ They are merely taking the school district at its word,” the justices said.
Justice Brett M. Kavanaugh also agreed to hear the case but did not join in the dissent. The justices were one vote short of approving a Supreme Court review.
Watch Perry break down these issues.
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