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Parents can't challenge Maryland school's gender identity policy, court rules

The policy permits schools to develop support plans for transgender students and bars staff members from informing parents about the plans without students' consent.
/ Source: Reuters

A federal appeals court on Monday ruled that a group of parents could not challenge a Maryland school district’s policy against telling parents if their children identify as transgender or gender-nonconforming.

A 4th U.S. Circuit Court of Appeals panel ruled 2-1 that three parents in Montgomery County, Maryland, lacked standing to challenge the policy because they had not alleged their children were transgender in the first place.

The policy, which the Montgomery County Board of Education adopted for the 2020-2021 school year, permitted schools to develop gender support plans for students to ensure they “feel comfortable expressing their gender identity.”

The policy directs school personnel to help transgender and gender-nonconforming students create a plan that addresses their preferred pronouns, names and bathrooms, and bars staff from informing parents of those plans without a student’s consent.

Lawsuits are pending challenging similar policies in other states. The Maryland case was the first to be argued before a federal appeals court.

Three parents backed by the National Legal Foundation, a Christian conservative group, argued the parental notification policy infringed their due process rights under the U.S. Constitution’s 14th Amendment to direct the care of their children.

But U.S. Circuit Judge A. Marvin Quattlebaum said the parents lacked standing to pursue their “compelling arguments” because they had not alleged their children had gender support plans or were transgender. That rendered their opposition a mere “policy disagreement,” he said.

“And policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse,” Quattlebaum wrote,

Quattlebaum was joined by a fellow appointee of former Republican President Donald Trump, U.S. Circuit Judge Allison Jones Rushing in directing the case be dismissed without prejudice, meaning it can be refiled.

Frederick Claybrook, a lawyer for the parents, said they were considering their next steps. “Parents do not have to wait until they find out that damage has been done in secret before they may complain,” he said.

U.S. Circuit Judge Paul Niemeyer, an appointee of Republican former President George H.W. Bush, dissented, calling the majority’s conclusion “an unfortunate abdication of judicial duty with respect to a very important constitutional issue.”

He said because parents could not know whether their children acted on the policy’s “invitation” to minor children to develop gender support plans, they had a stake that gave them standing to sue.

“The issue of whether and how grade school and high school students choose to pursue gender transition is a family matter, not one to be addressed initially and exclusively by public schools without the knowledge and consent of parents,” he wrote.

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.