Volokh conspiracy lawyer scrgruppen
from TF v. Kettle Moraine School Dist.decided last week by Judge Michael Maxwell (Wisconsin Circuit, Waukesha County) (some punctuation removed):
The complaint alleges that the Kettle Moraine School District (hereinafter referred to as “Kettle Moraine”) violated parental rights by adopting a policy that permitted, facilitated, and affirmed a minor student’s request to transition to a different gender identity at school without parental consent and even over parental objection….
Truth results
TF and BF had a daughter (“AF”) who attended Kettle Moraine Middle School (“KMMS”) in the Kettle Moraine School District. AF began to question her gender identity and TF and BF moved her to a mental health center and this center focused on “affirming” this new gender identity.
AF then returned to school with some parental support for identification, but TF and BF eventually changed course and went to school to communicate their desire to refer to AF by her legal name and female pronouns. The district responded by saying it would follow AF’s guidelines regarding which pronouns to use, even over parental objections.
In response, TF and BF withdrew AF from the area and shortly thereafter AF concluded that she did not want to change sex….
Social transition of one’s gender is a decision that should usually be preceded by a mental health professional (“MHP”) to conduct a psychological evaluation in order to find out the benefits and challenges of such transition. Social transformation represents “one of the most difficult psychological changes a human being can go through.” …
Social transitioning is a “powerful psychotherapeutic intervention” that is likely to reduce the number of children coming out of their transgender identity and could lead them to use puberty blockers and sex hormones, which carry known risks. Therefore, informed consent must be obtained from the parents before the child is socially transferred. Social transition without the full support of the parents can lead the child to live a double life which can be “psychologically harmful”.
There is also no evidence to suggest that social and/or medical transition reduces the risk of suicide among individuals with gender dysphoria.
Trained psychotherapists should not differentiate between a parent and their child because social transformation can only occur through “the support and acceptance of parents/caregivers.” additional, “[c]Upsetting, overriding, or excluding parents from decisions about social transition undermines the key support structure for the child or adolescent who desperately needs support.
The school facilitated the transfer without parental consent/acceptance violates the parent’s ability to take a more careful approach to their child as well as a treatment approach that does not include immediate transfer….
discussion …
This case is not specifically about parents controlling how the school educates its students. Nor does this apply to the broader societal debate, the implications of transgenderism in our youth, or the political movement that supports it.
One of the lead rights plaintiffs has suggested that this case involves parental decision-making power, such as making health care decisions, which they say is a fundamental liberty interest that requires it to pass strict scrutiny. The defendants appear to ignore this argument from the plaintiffs, and instead focus on arguing against a position that the plaintiffs never adopted—the right to control how a school educates a child. Although they address the position of parental rights, they say that “no court has expanded their scope [parental right’s] So broadly as to include the right of parents to control the title and pronoun used by school personnel during the day.
under Michels vs. Lyons (Wis. 2019), parents have a fundamental interest in freedom in decisions regarding “the care, custody, and control of their children.” The state has an interest only when the child’s physical or mental health or well-being is at risk. However, the state’s interest, if it violates parental right, must be narrowly tailored.
additional, “[s]“The implication that a parent’s decision is unacceptable to the child or because it involves risk does not automatically transfer the authority to make that decision from the parent to some state agency or official.” Children are not afforded the same independent rights as adults because “[m]Most children, even in adolescence, are simply unable to make sound judgments regarding many decisions, including their need for medical care or treatment. Parents can and should make these judgments.”
Plaintiffs submitted undisputed expert affidavits stating that this is a medical issue because it provides insight into transgenderism and how medical and social conditioning can impact a child’s mental health. It is important to note that both clinicians agree that living a “double life” where a child’s gender roles differ at home and school is “inherently psychologically unhealthy” and can undermine that child’s existing support structures. Both doctors noted that all of the professional organizations that have dealt with these types of scenarios suggest that the child receive a vocational evaluation, but none of them said that the school district must continue the process of addressing or processing that child’s alternative gender identity without “parental consent and buy-in.” “
This is undoubtedly a medical and health care issue – and the defendants have presented no evidence to the contrary. As such, the school district violated the parents’ wishes regarding how their child should be treated medically. This directly involves a violation of the parents’ right to autonomy in directing the care of their child….
Strict scrutiny requires that “the law must be narrowly tailored to advance a compelling state interest” which is “a strict standard, and this is the rare case in which the law survives.”
The defendants argue that their actions will survive because they are narrowly tailored to support “vulnerable groups of students” while also “complying with state and federal laws and guidance for the treatment of transgender and gender nonconforming students.” They rely on a federal district court case from Maryland to support this where the court there found that a school district did not need to tell parents if their children were using different names/pronouns. John and Jane Barents 1 v. Montgomery County. Bahraini dinar. Of education. (D. Maryland 2022).
However, the court found that the primary right was whether the parents had the right “to be promptly informed of their child’s gender identity.” The court also focused on the fact that parents do not have the right to direct their children’s education. That court viewed the case as being akin to a case in which the curriculum was challenged.
The Maryland court did not consider the medical implications of such procedures in the same manner as they are presented before this court. Furthermore, only the federal district courts are persuasive to this court, and this is coming from a court that is not even within the federal circuit of this court.
Kettle Moraine’s reliance on attempting to comply with state and federal laws as well as guidance is also futile because there is no specific guidance on this issue from the relevant jurisdictions, and federal guidance regarding Title IX is, at best, an unsettled question.
Plaintiffs point out that the district’s procedures are not narrowly tailored because there are no necessary procedural protections needed to override a parent’s choice of how their child is medically treated. This is required as we saw in Michaels [where] The parents’ decision was only overturned after “clear and convincing” evidence was presented. Perhaps the district can present clear and convincing evidence in order to substitute a parent’s medical judgment, but it certainly cannot do so on a whim in the way it did, and presented no evidence – let alone clear and convincing evidence in this case….
Before this court is what modern society considers a controversial issue – transgenderism involving minors within our schools. Clearly, the law relating to this issue is still developing across the country and remains highly unsettled. but, this The particular case is not related to this widely controversial issue. This particular case is simply whether a school district can substitute a parent’s right to control their children’s health care and medical decisions. The established case law in this regard is clear – Kettle Moraine cannot do this. The school district revoked BF and TF’s parental rights over how to treat atrial fibrillation medically when the district decided to socially affirm atrial fibrillation at school despite BF and TF’s request not to do so. With its policy of ignoring parents’ wishes regarding a medical or health-related decision and with how quickly a person’s gender can come into question, PW and SW are at real risk of being harmed by current school district policy.
The current policy of dealing with these issues on a case-by-case basis without notifying the parents or ignoring the parents’ wishes is impermissible and violates basic parental rights….
Kettle Moraine School District’s policy of enabling and affirming a minor student’s transition to a different gender identity at school without parental consent violates the constitutional right of parents to determine appropriate medical and health care for their children.
Violated Kettle Moraine School District TF policy[‘s] And Belgian franc[‘s] Constitutional rights as parents to determine appropriate medical treatment and health care for their children.
The Kettle Moraine School District is prohibited from permitting or requiring employees to refer to students using a name or pronouns inconsistent with the student’s biological sex, while at school, without express parental consent.
