School’s Gender Identity Protocol Puzzles First Circuit Judges

The First Circuit appeared open Wednesday to the idea that parents have a constitutional right to be alerted when their child uses new pronouns at school, but cast doubt on whether that right extends to choosing how teachers refer to their child.

The panel of judges during oral argument weighed the matter in a lawsuit brought by parents Stephen Foote and Marissa Silvestri, who sued the Ludlow, Massachusetts School Committee over a teacher’s failure to tell them that their child began identifying as genderqueer.

The parents claim the well-established constitutional right to direct the upbringing of their child extends to what pronouns they use at school. The school district argues that calling students by their preferred pronouns is required to comply with Massachusetts’ anti-discrimination law for public schools.

“One of the basic rights that parents have is to decide whether to keep their children in private or public school,” Judge Julie Rikelman said. If a school doesn’t disclose important information about a child’s gender identity, “they then lose the ability to make a really meaningful decision: do we keep our child in that school, or do we move our child to another school?”

The First Circuit’s decision will likely be the highest court ruling to date on the merits of an argument circulating in federal courts across the country, which could eventually reach the US Supreme Court.

‘Shock the Conscience’

The argument centered around whether the parents could prove the state violated their Fourteenth Amendment right to make decisions about the upbringing of their children.

The US District Court for the District of Massachusetts threw out the case in December 2022 after finding that the parents failed the “shock the conscience” test, which analyzes whether someone can bring a substantive due process claim against the state by determining whether they’ve alleged “facts so extreme and egregious as to shock the contemporary conscience.”

“A significant interference with a protected relationship, such as the parent-child relationship,” can itself shock the conscience, said Mary McAlister, senior litigation counsel with the Child & Parental Rights Campaign Inc., who represents the parents.

But the shock the conscience test is “a two step process,” where the court must first decide whether conduct is “so egregious that it shocks the conscience,” and then examine that the state interfered with a right protected by the substantive Due Process Clause, said Judge Kermit Lipez.

“Aren’t you conflating the concept of interference with a right with the shock the conscience analysis?” Lipez asked.

David Lawless, a partner at Robinson Donovan PC representing the school district, said that the school’s “mere failure to convey important information doesn’t shock the conscience.” That standard is a very high bar: for example, even if a school had knowledge that a student was depressed, and the student later committed suicide, it would not shock the conscience, Lawless said.

The school district also argued that taking the parents’ side would put an unfair burden on schools. “If one accepts that gender identity must always be disclosed to parents, there’s no limiting principal” to what other information about a students’ well-being must be disclosed, Lawless said.

“Respectfully, that doesn’t seem correct to me,” Rikelman replied, asking Lawless if he was really saying there was no difference between “the gender identity of your child and who your child played with at recess that day?”

Mental Health Treatment

The parents argue that by affirming their child’s gender identity, the school violated a parent’s constitutional right to direct their child’s mental health care.

“When a school district engages in what is called social transitioning, which incorporates using a different name for the child and referring to the child as another gender,” McAlister said, courts have concluded that constitutes treatment for gender dysphoria.

While Rikelman agreed that “it can be important for an individual’s mental health to have their preferred pronouns and name recognized,” it’s a stretch to argue that “ordinary people in everyday life are providing mental health treatment when they are using people’s preferred pronouns.”

Lipez said McAlister’s “assertion that the very use of pronouns is a form of medical or mental health treatment” is “a classic form of a conclusory assertion that’s designed to fit a legal theory,” which “we’re told to be wary of in evaluating a motion to dismiss.”

The case is Foote v. Ludlow School Comm., 1st Cir., No. 23-1069, oral argument 9/13/23.