Background
The case was brought by parents of a student in the Ludlow Massachusetts public school system. When the student, R.F., was in middle school they began to question and explore their gender identity. In the sixth grade, R.F. informed their middle school teachers and counselor that they wanted to go by the name R.F. and would use any pronouns. R.F. told the school counselor she wanted the school to continue to use their prior name and pronouns with their parents. The school implemented R.F.’s name and pronoun change at school, and did not disclose that to R.F.’s parents—based on a school protocol of letting students determine whether their parents would be notified about decisions related to gender identity.
One of R.F.’s teachers, however, told their parents about the name and pronoun change. The parents had previously asked school staff not to engage with their children regarding mental health issues, and expressed to the school that they felt the school’s recognition of R.F.’s gender was a form of mental health treatment. The school did not stop recognizing R.F.’s gender, and the parents sued the town of Ludlow, the school committee, and various school officials.
Legal Case
The parents argued that the school district’s actions in using R.F.’s preferred name and pronouns violated their constitutional parental rights, specifically: the right to direct the education and upbringing of their children; the right to make medical and mental health decisions for their children; and the right to familial privacy.
The district court dismissed the case for failure to state a claim and the parents appealed.
The First Circuit, in a per curiam opinion (written by the whole panel, not a single judge), also concluded that the parents had failed to state a claim. The court identified the relevant constitutional right at issue as the right to “direct the upbringing of one’s child,” a right the Supreme Court has long recognized. The parents argued that the district’s actions interfered with this right in three ways: (1) by performing “medical treatment” on the student by accepting the student’s transition; (2) by facilitating the student’s social transition; (3) by depriving the parents of information about the student’s gender. The court found that the parents had not established that the district’s conduct did not constitute medical treatment.
The court then turned to whether facilitating R.F.’s social transition restricted their parents’ rights to direct R.F.’s upbringing. The court held that parental constitutional rights do not give parents “the right to control a school’s curricular or administrative decisions.” The jurisprudence on parental rights has held that the government cannot prevent parents from obtaining certain courses of instruction for their children, but does not give parents the right to decide how the state’s public schools education their students. The court noted in that in numerous past cases it had already held that “public schools need not offer students an educational experience tailored to the preferences of their parents.”
Finally, the court addressed the argument that the district’s protocol of not informing parents of a student’s gender identity and social transition without the student’s permission violated the parents’ rights. The court disagreed. Canvassing the major parental rights cases, the court held that the Constitutional right to direct the upbringing of one’s children prohibits the government from restraining parents’ abilities to provide their preferred upbringing for their children. The Constitution does not impose affirmative obligations on governments assist the parents in raising their children in a certain way, which appeared to the Court to be what R.F.’s parents wanted. In rejecting the parents’ argument, the Court said the parents remained free to use the tools at their disposal—including private or homeschooling, religious programming, and talking to their kids—to try to mold their child according to their beliefs. The court rejected the parents’ claim that the school was preventing them from getting important information about their child’s gender. The court stated (again) that parents could talk to their children if they want information about them, or “make meaningful observations” of their children’s preferences in clothing, activities, and media. In the end, the Court noted that in this case, the parents had learned about R.F.’s pronouns and name from the school within days of R.F. making the change, so they had not been deprived of the information at issue.
After determining that the parents had not adequately alleged that the district had restricted a fundamental constitutional right, the court turned to whether the district’s protocol survived rational basis review (the lowest level of constitutional scrutiny). To meet that standard of review the district had to show that the protocol might have advanced legitimate governmental interests. The court found that the district had a compelling interest in protecting vulnerable children, the protocol advanced the district’s “legitimate objective of promoting a safe and inclusive environment for students.”
What does the decision mean for transgender students in Massachusetts?
The court was clear: parents do not have a right to have their children’s schools disclose how the children identify or express their gender identities at schools. Schools that follow the DOE’s guidance on how to support transgender and non-binary students are supporting a legitimate government objective consistent with state anti-discrimination laws.
As we have discussed on this blog, President Trump has issued numerous executive orders aimed at harming transgender people. This includes an attempt to remove anti-discrimination protections from transgender students by re-defining the term “sex” to exclude gender identity. The Foote decision is a reminder that regardless of the barrage of attacks coming out of the executive branch, the courts are the branch of government responsible for interpreting our laws and constitutions. In this case the First Circuit applied longstanding Supreme Court case law and found that the plaintiff parents had not identified a violation of their fundamental constitutional rights. Massachusetts law, and the courts that interpret it, protect the creation of safe school environments for transgender students.
If you or your child is experiencing discrimination in school, please contact our attorneys at (617) 742-6020.