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Litigation
Students file into their classroom at Sun Yat Sen M.S. 131 on Feb. 25, 2021 as
New York allowed middle school pupils the option for in-person learning for the
first time in months.
Michael Loccisano/Getty Images
Sept. 13, 2023, 10:36 AM


SCHOOL’S GENDER IDENTITY PROTOCOL PUZZLES FIRST CIRCUIT JUDGES

By Allie Reed

Allie Reed
Correspondent

Share To:Facebook
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 * Parents argue right to be told about new pronoun use
 * School claims state law requires affirming gender identity

The First Circuit appeared open Wednesday to the idea that parents have a
constitutional right to be alerted when their child uses new pronouns at school,
but cast doubt on whether that right extends to choosing how teachers refer to
their child.

The panel of judges during oral argument weighed the matter in a lawsuit brought
by parents Stephen Foote and Marissa Silvestri, who sued the Ludlow,
Massachusetts School Committee over a teacher’s failure to tell them that their
child began identifying as genderqueer.

The parents claim the well-established constitutional right to direct the
upbringing of their child extends to what pronouns they use at school. The
school district argues that calling students by their preferred pronouns is
required to comply with Massachusetts’ anti-discrimination law for public
schools.

“One of the basic rights that parents have is to decide whether to keep their
children in private or public school,” Judge Julie Rikelman said. If a school
doesn’t disclose important information about a child’s gender identity, “they
then lose the ability to make a really meaningful decision: do we keep our child
in that school, or do we move our child to another school?”

The First Circuit’s decision will likely be the highest court ruling to date on
the merits of an argument circulating in federal courts across the country,
which could eventually reach the US Supreme Court.


‘SHOCK THE CONSCIENCE’

The argument centered around whether the parents could prove the state violated
their Fourteenth Amendment right to make decisions about the upbringing of their
children.

The US District Court for the District of Massachusetts threw out the case in
December 2022 after finding that the parents failed the “shock the conscience”
test, which analyzes whether someone can bring a substantive due process claim
against the state by determining whether they’ve alleged “facts so extreme and
egregious as to shock the contemporary conscience.”

“A significant interference with a protected relationship, such as the
parent-child relationship,” can itself shock the conscience, said Mary
McAlister, senior litigation counsel with the Child & Parental Rights Campaign
Inc., who represents the parents.

But the shock the conscience test is “a two step process,” where the court must
first decide whether conduct is “so egregious that it shocks the conscience,”
and then examine that the state interfered with a right protected by the
substantive Due Process Clause, said Judge Kermit Lipez.

“Aren’t you conflating the concept of interference with a right with the shock
the conscience analysis?” Lipez asked.

David Lawless, a partner at Robinson Donovan PC representing the school
district, said that the school’s “mere failure to convey important information
doesn’t shock the conscience.” That standard is a very high bar: for example,
even if a school had knowledge that a student was depressed, and the student
later committed suicide, it would not shock the conscience, Lawless said.

The school district also argued that taking the parents’ side would put an
unfair burden on schools. “If one accepts that gender identity must always be
disclosed to parents, there’s no limiting principal” to what other information
about a students’ well-being must be disclosed, Lawless said.

“Respectfully, that doesn’t seem correct to me,” Rikelman replied, asking
Lawless if he was really saying there was no difference between “the gender
identity of your child and who your child played with at recess that day?”


MENTAL HEALTH TREATMENT

The parents argue that by affirming their child’s gender identity, the school
violated a parent’s constitutional right to direct their child’s mental health
care.

“When a school district engages in what is called social transitioning, which
incorporates using a different name for the child and referring to the child as
another gender,” McAlister said, courts have concluded that constitutes
treatment for gender dysphoria.

While Rikelman agreed that “it can be important for an individual’s mental
health to have their preferred pronouns and name recognized,” it’s a stretch to
argue that “ordinary people in everyday life are providing mental health
treatment when they are using people’s preferred pronouns.”

Lipez said McAlister’s “assertion that the very use of pronouns is a form of
medical or mental health treatment” is “a classic form of a conclusory assertion
that’s designed to fit a legal theory,” which “we’re told to be wary of in
evaluating a motion to dismiss.”

The case is Foote v. Ludlow School Comm., 1st Cir., No. 23-1069, oral argument
9/13/23.

Continue Reading

To contact the reporter on this story: Allie Reed in Boston at
areed@bloombergindustry.com

To contact the editors responsible for this story: Fawn Johnson at
fjohnson@bloombergindustry.com; Alex Clearfield at
aclearfield@bloombergindustry.com


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DOCUMENTS

Docket

RELATED STORIES

Public School’s Pronoun Protocol Tests Bounds of Parental Rights
Sept. 12, 2023, 2:00 AM
California Sues Over School Outing Kids’ Pronouns to Parents (2)
Aug. 28, 2023, 2:28 PM

TOPICS

 * parentage
 * pediatric care
 * mental health care
 * due process

© 2023 Bloomberg Industry Group, Inc.
All Rights Reserved


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