Federal court rejects suit challenging trans-inclusive school board policy in Maryland

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The Montgomery County Board of Education meets at the Carver Educational Services Center in Rockville, Maryland.
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A federal district judge in Maryland granted the Montgomery County Board of Education’s motion to dismiss a lawsuit filed by three parents who challenged the legality of the board’s “2020-21 Guidelines for Student Gender Identity in Montgomery County Public Schools.” Judge Paul W. Grimm’s August 18 ruling found that none of the legal theories proposed by the parents would constitute a valid legal claim. The parents filed their lawsuit last October.

The board’s guidelines commit the county’s public schools to “a safe, welcoming school environment where students are engaged in learning and are active participants in the school community because they feel accepted and valued.” To achieve this goal, the board adopted a policy that “all students should feel comfortable expressing their gender identity, including students who identify as transgender or gender non-conforming.” School staff members are directed to “recognize and respect matters of gender identity,” including using students’ preferred names and pronouns and protecting “student privacy and confidentiality.” The policy refers to guidance from the state’s education department and previously adopted board policies “prohibiting discrimination, stigmatization, and bullying based on gender identity, as well as sex, gender, gender expression, and sexual orientation, among other personal characteristics.” It also instructs staff to make “reasonable accommodations” to the needs of students regarding their gender identity, and to assess student needs on a “case-by-case basis.”

The parents who filed suit specifically focused on the part of the guidelines titled “Gender Support Plan,” which essentially gives students a veto on staff members revealing their gender identity, pronouns, preferred names, and so forth to their parents and other family members or any other “third party” without the students’ consent, and asks students to indicate whether their families are supportive of their gender identity. The Guidelines treat information about a student’s “transgender status, legal name, or sex assigned at birth” as “confidential medical information,” and requires that any records or forms referencing these topics be kept separate from academic records, which parents have a right to see. Among other things, the guidelines state that “unless the student or parent/guardian has specified otherwise, when contacting the parent/guardian of a transgender student, MCPS school staff members should use the student’s legal name and pronoun that correspond to the student’s sex assigned at birth.”

The parents claimed that these policies violated their rights under the federal and state constitutions and various statutes and regulations.

Relying primarily on the federal 14th Amendment’s Due Process Clause, the parents claimed that the guidelines require school staff to interfere in the relationship between students and their parents by implicitly encouraging “children to distrust their parents” by asking the students whether they wanted their gender identity disclosed to their parents and whether they anticipated parental support. The parents charged that the board “has an agenda” to “hide relevant information from parents because they do not want parents to have input on the topic with their children,” which, the parents contend, means that “MCBE has adopted a very definite position on this sensitive topic.”

Judge Grimm concluded that the parents’ reading of the guidelines was “unsupported by the Guidelines’ plain language.” Contrary to the parents’ contentions, Grimm found that the guidelines were designed to be flexible and to encourage case-by-case decision-making respecting the privacy and safety concerns of students. “Far from commanding the alleged interference with parental rights that the plaintiffs describe,” wrote Grimm, “the guidelines carefully balance the interests of both the parents and students, encouraging parental input when the student consents, but avoiding it when the student expresses concern that parents would not be supportive, or that disclosing their gender identity to their parents may put them in harm’s way.”

The court also found that many provisions of the guidelines encouraged parental involvement, including joint development with school staff of plans to deal with a student’s transition and the student’s opportunity to participate in school programs, and that staff are directed to work towards inclusion of the family. Grimm pointed out that the parents’ objections failed to read the guidelines as a whole, narrowly focusing on specific provisions viewed out of context. “The guidelines’ purpose of maintaining the comfort, privacy, and safety of transgender and gender non-conforming students must inform how they are read and how they can reasonably be expected to be implemented,” he wrote.

Judge Grimm engaged in a careful and nuanced review of Supreme Court and Court of Appeals opinions about parental rights, and found that they would not support the claims the parents were making in this case. There is not, he wrote, a “‘fundamental right’ for parents to dictate the nature of their children’s education in public schools that required the application of strict scrutiny.” Unlike cases where courts had found violations of parental rights, the guidelines encourage parental involvement so long as the student is comfortable in doing so, and rely on the student to make the judgment call whether involving their parents could endanger their living situation. He found that the guidelines, as worded, did not establish the kind of rigid policy that the parents criticized in their complaint.

The judge found that the guidelines easily meet the constitutional standard of rationality in support of the school board’s “legitimate interest in providing a safe and supportive environment for all MCPS students,” and found that the board’s concern about safety and well-being of transgender and gender non-conforming students was “neither theoretical nor fanciful” in light of various studies presented in an amicus brief filed in opposition to the lawsuit by a coalition of groups including PFLAG Metro DC, Freestate Justice, The Center for LGBTQ Health Equity, the Montgomery County Pride Center, the Rainbow Youth Alliance, SMYAL, and Whitman-Walker Health.

The court similarly found that the Guidelines did not violate the Maryland Declaration of Rights or any of the federal or state statutes or regulations cited by the parents. Although Judge Grimm acknowledged that the parents might have a plausible claim under a Maryland regulation about parental access to student records, he pointed out that those provisions have not been interpreted as creating a right to file a lawsuit to seek such records, and that in Maryland state agencies do not have authority to create a private right to bring a lawsuit by adopting a regulation. If the parents want access to records the schools may have concerning their child’s gender identity, they have to pursue an administrative remedy through the state’s Education Department rather than a lawsuit.

Consequently, the court granted the school board’s motion to dismiss the lawsuit. Judge Grimm’s order is a final judgment that the parents can appeal to the Richmond-based US Court of Appeals for the Fourth Circuit.