17 Republican AGs demand Supreme Court take up case about forcing schools to out trans kids

A coalition of 17 Republican state attorneys general have filed an amicus brief urging the Supreme Court to take up a case about a school’s policy allowing teachers to not out trans and gender-nonconforming students to their parents.

The brief, filed last week, opposes a lower court decision upholding the Montgomery County, Maryland, Board of Education’s guidelines on student gender identity. First adopted by the district during the 2020–2021 school year, the guidelines do not require school staff to inform parents if a student requests to socially transition at school. Instead, school staff must first “ascertain the level of support the student either receives or anticipates receiving from home” before determining whether to speak to their parents.

Related:

Judge throws out parents’ lawsuit over school policy to not out trans kids to their parents

The parents said they have a constitutional right to know if their kids are using other pronouns at school. The judge said no.

“This egregious policy completely sidesteps parents’ rights and severs them from having involvement in their child’s physical, emotional, mental, and social well-being,” West Virginia Attorney General Patrick Morrisey (R) said in a January 4 statement.

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Morrisey led the coalition, which also included attorneys general from Alaska, Florida, Georgia, Idaho, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Virginia.

The district’s policy “disrupts ‘perhaps the oldest of the fundamental liberty interests recognized by the Court,’ the right of parents to direct the care and custody of their children,” the coalition wrote in the brief, quoting the Supreme Court’s 2000 decision in Troxel v. Granville.

In October 2021, three parents, identified in court filings as “John and Jane Parents,” sued the Montgomery County Board of Education over the guidelines, which they characterized as a “Parental Preclusion Policy,” claiming that they violated state law and the U.S. Constitution by encouraging school staff to keep a child’s gender identity hidden from their parents. In August 2022, a federal judge ruled against the parents, writing that the guidelines are, in fact, meant to be flexible and don’t necessarily instruct school staff to hide information from parents.

The parents appealed, and last August the U.S. Court of Appeals for the Fourth Circuit upheld the earlier decision, ruling in a 2–1 decision that the plaintiffs did not have standing to challenge the district’s guidelines.

“Simply put, the parents may think the Parental Preclusion Policy is a horrible idea,” Judge A. Marvin Quattlebaum Jr. wrote. “They may think it represents an overreach into areas that parents should handle. They may think that the board’s views on gender identity conflict with the values they wish to instill in their children. And in all those areas, they may be right. But even so, they have alleged neither a current injury, nor an impending injury or a substantial risk of future injury. As such, these parents have failed to establish an injury that permits this court to act.”

In their brief, the state AGs claimed that the Fourth Circuit’s decision presents a catch-22: “Parents can show standing only if they overcome Montgomery County’s secrecy efforts and discover their child is transitioning. That may be an impossibility, as schools have even been known to alter documentation to hide that information… But even if the parents do find out about enough information to show standing under the Fourth Circuit’s test, then their secrecy injury dissipates in the same moment, and they don’t need a claim at all anymore.”

LGBTQ+ youth are at a higher risk of homelessness than straight, cisgender youth, and outing them to their parents without their consent can increase their risk of harm.

“These high rates of familial rejection and abuse dramatically increase the risks of suicidality, substance abuse, and depression,” the ACLU argues. “Not every child can be their true selves at home without risking their physical or emotional well-being.”

The attorneys general of Alaska, Florida, Georgia, Idaho, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Virginia signed the brief.