Maryland parental rights case involving gender identity awaits Supreme Court review

The gender identity policy in Montgomery County, Md., prioritized supporting students, which could mean leaving parents in the dark if their child was transitioning.

Published: January 20, 2024 11:42pm

(The Center Square) -

A parental rights case that began four years ago in Montgomery County, Maryland, now waits at the steps of the U.S. Supreme Court.

The plaintiffs hope their case will be one of the less than 2% of those petitioned to the nation’s highest court that the court takes on.

The case is John and Jane Parents 1 v. Montgomery County Board of Education, in which three parents with children in Montgomery County public schools sued the board because of a 2020-21 gender identity policy that authorized the concealing of information from parents. The policy prioritized supporting students, which could mean leaving parents in the dark if their child was transitioning.

“Matters of gender identity can be complex and may involve familial conflict…. In such cases, staff will support the development of a student-led plan that works toward inclusion of the family, if possible, and recognizing that providing support for a student is critical, even when the family is nonsupportive,” according to the policy.

The plaintiffs lost their case in 2021 when a federal district court ruled against them, calling the policy a matter of curriculum.

The parents appealed the case, and the appellate court refused to rule on the merits, instead ruling 2-1 that the plaintiffs lacked standing because they had not alleged their children were transgender.

To have standing in a federal court, the plaintiff must demonstrate either a “current injury, certainly impending injury, or a substantial risk of a future injury,” and without the plaintiffs making that claim, there was only an attenuated possibility of injury, according to the majority opinion — not strong enough for standing.

Emily Rae, senior counsel at the legal nonprofit Liberty Justice Center and co-author of an amicus brief the Center wrote on behalf of the plaintiffs, disagrees with the majority opinion.

“I think the existence of the policy that allows schools the option of keeping secrets from parents, or in some cases going as far as actively lying to parents….. is standing enough,” Rae told The Center Square.

“The inference then is that you have to wait for the harm… To say the parents don’t have standing unless it’s actually happened to them — a child needs to potentially get hurt before a school district can be held responsible for their irresponsible policies.”

Though the majority did not rule on the merits of the case, it referred to the school board’s policy as “shocking,” “perhaps repugnant,” and “staggering from a policy standpoint” in its opinion.

Erica Anderson, a clinical psychologist with more than 40 years of experience in the field — who also identifies as a transgender female — contributed to the Liberty Justice Center’s brief and has been involved in many similar cases nationwide. While Anderson doesn’t oppose gender transition, the psychologist also doesn’t believe it’s the answer in every case.

“I’m trans positive, as they say, gender affirming, but I’m not blind to the idea that this isn’t the right path for everyone,” Anderson told The Center Square.

“Sometimes kids seize upon this as the solution to their problems, and sometimes they’re right but often they’re wrong. To close off any other avenue of help and just decide that it’s all about gender — a 15-year-old probably isn’t in the most objective position to decide that.”

And while Anderson asserts that transition may be the right choice for some, depriving the parents of being involved causes psychological harm of its own.

“It causes problems. They don’t get any better. I’ve been asked to intervene as a psychologist where there’s been a rift in the family because of such policies,” Anderson said.

Montgomery County schools spent nearly half a million on legal expenses through August 2023, up from $75,191 the prior fiscal year.

Though a date has not yet been set, the Supreme Court will likely decide whether it will hear the case in late spring.

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