A panel of conservative U.S. appeals court judges on Thursday appeared poised to revive a lawsuit challenging a Maryland school district’s policy of not disclosing students’ transgender identity to their parents.
The 4th U.S. Circuit Court of Appeals panel during a hearing in Richmond, Virginia, appeared to agree with a group of parents in Montgomery County, Maryland, whose lawsuit challenging the 2020 policy was brought before the panel after a judge dismissed it last year. The parents argued it allows school officials to usurp their roles in their children’s upbringing.
“This is a major life decision that should involve the parents,” Circuit Judge Paul Niemeyer said as the panel heard arguments in the case before it makes a decision.
The policy directs school personnel to help transgender students create a plan to transition, including using preferred pronouns, names and bathrooms, and bars staff from informing parents of those plans without a student’s consent.
The federal judge in Maryland who dismissed the case last August said the parents do not have a fundamental right to be promptly informed of their child’s gender identity.
The parents are represented by the National Legal Foundation, a Christian conservative group that has been involved in a series of other cases involving LGBTQ rights, abortion and prayer in schools.
Steven Fitschen, the group’s president, said in an email that he anticipates filing more lawsuits challenging school policies barring the disclosure of students’ gender identity.
At least 168 U.S. school districts with more than 3.2 million students have such policies, according to conservative group Parents Defending Education.
Thursday’s case is the first of its kind to reach a U.S. appeals court. Parents have filed lawsuits challenging similar policies adopted by school districts in Massachusetts, Wisconsin, Virginia and Iowa, among other states. Some of those have been dismissed and others are pending.
The 4th Circuit is not currently considering the merits of Montgomery County’s policy, but whether the parents can sue over it and have identified a constitutional right that was allegedly violated.
Niemeyer, an appointee of Republican former President George H.W. Bush, and Circuit Judge Marvin Quattlebaum both said the policy had injured parents, giving them grounds to sue, by inviting students to secretly transition.
Quattlebaum and Circuit Judge Allison Rushing, who rounded out the panel, are appointees of Republican former President Donald Trump.
The county board of education in adopting the policy said it was necessary “to embrace the vibrant diversity of our community and ensure that all students feel welcomed, safe, and respected.”
Alan Schoenfeld, a lawyer for the board, argued on Thursday that the policy was valid because it created a “student-led” process rather than allowing school officials to impose their will on students.
“There is no allegation that the school is making any decision or directing the process,” he said. “The child is deciding.”