U.S. courts weighing whether teachers are obligated to tell parents their kid may be trans

A handful of court cases are being debated to decide whether school officials should be required to tell parents if their child identifies as LGBT.

The state and federal cases are likely to create further legal and legislative battles involving thorny questions surrounding student gender identity, the scope of parental rights and the limits of school authority concerning.

The first lawsuit was reportedly in 2020 against a school district in Madison, Wisc. Other cases have been filed in school districts across the country, including Montgomery County, Md.; Leon County, Fla.; and Ludlow County, Mass.

Rick Claybrook, an attorney for the parents in the lawsuit against the Montgomery County school district, told Education Week, "The central issue in the case is parental rights to their children and knowing what’s going on in the school with their children, and by this policy, that is being denied."

Parents have argued in multiple cases that when the schools support children's LGBT lifestyle without informing parents it is in violation of state constitutions or the 14th Amendment of the U.S. Constitution. 

"Kids have their parents to protect them because they're not able to do so until they reach maturity, and I think often will misunderstand whether the parents are supportive or not," Claybrook said.

The U.S. Centers for Disease Control and Prevention found in 2017 that 1.8% of high school students identify as transgender.

LGBT activists see the lawsuits as part of a broader political effort unfolding in state legislatures across the country, citing recently enacted laws that bar transgender students from playing on teams that do not align with their biological sex and restricting what instructors can teach about gender identity. 

"I can't help but recognize that although 'parents' rights' have been proposed as the basis and framework for a lot of these things, a larger concern is not necessarily parents' rights, but parental fear of LGBTQ people, and trying to control access to that by young people," Kell Olson, an attorney at Lambda Legal who specializes in LGBTQ cases, told Education Week.

Each of the cases pits schools against parents. 

In Ludlow, for example, parents filed a lawsuit after they said school officials permitted their daughter to change names and pronouns in defiance of an email from the parents asking them to stop talking to their child about issues related to her health. The parents had their child in counseling to help her deal with same-sex attraction at the time.

In a California lawsuit, the parents claimed that teachers hosted a secret LGBTQ club to urge their child to identify as transgender.

School officials "walk that delicate line balancing the privacy interests of the student versus his or her parents and your legal duties," the National School Boards Association wrote about transgender issues in 2016.

The lawsuits attempt to make the schools' and parents' roles more clear. Parents argue that they need to give consent to their child's sexual identity and pronouns.

Schools are not legally able to give minor students vaccines or even ibuprofen without parental consent, and parents need to sign forms for their children to go on field trips and play sports, Wisconsin Institute for Law and Liberty's Luke Berg told Education Week.

"The court should require parental consent before facilitating a transition at school, because it's such a significant transition, and it can do harm," he said.

None of the lawsuits have reached the trial stage yet. 

The Biden administration is working to enshrine protection for gender identity status in Title IX, which protects against discrimination based on sex.

However, in a 2013 case, a federal appeals court ruled that the 14th Amendment did not create a privacy right preventing school officials from "from discussing with a parent the student's private matters, including matters relating to sexual activity of the student."

Olson would like to see parents support school districts' "reasonable policies" rather than resort reflexively to the courts to uphold parental rights.

"We know about thousands of districts across the country that successfully navigate these issues and provide supportive and affirming environments for students in coordination with parents," he told Education Week. "The focus should be on supporting reasonable policies, rather than a knee-jerk reaction that says we need to start suing schools."

Each case has different implications for the balance between school authority and parents' rights. If Claybrook wins the case for parents in Montgomery County, for example, it would mean the school must tell parents if a child says they want to socially transition.

"You're basically saying that school officials, based on maybe half an hour with a student, will decide they have abusive or neglectful parents" under current county policy, Claybrook said. "There are provisions in Maryland and every other state to deal with abusive and neglectful parents, and that requires due process to be followed."

The Madison lawsuit has progressed the farthest, and in May the Wisconsin Supreme Court will hear the case.

So far, a judge has issued a preliminary injunction preventing the school from using its rules "in any manner that allows or requires district staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school."

While the 2017 survey showed that less than 2% of high schoolers identify as transgender, the numbers appear to have increased since then.

A February Gallup survey found that 2.1% of Americans born between 1997-2003 identify as transgender, a higher percentage than ever before.

"I think one of the theories is that this is in part at least socially driven, that students that struggle with this are affected by the messages they hear in schools, the messages they hear from their peers, and there are kids who struggle with this who would not have were it not from the messaging they hear every day on schools from social media," observed Berg from Wisconsin Institute for Law and Liberty.