The U.S. Supreme Court on Monday declined to hear a case about a school district鈥檚 policy to support students undergoing gender transitions. But three justices said they would have taken up the challenge by a group of parents who contend the policy unconstitutionally excludes them from important decisions about their children.
Justice Samuel A. Alito Jr., in a dissent from the denial of review joined by Justice Clarence Thomas, said the case 鈥減resents a question of great and growing national importance: whether a public school district violates parents鈥� fundamental constitutional right to make decisions concerning the rearing of their children 鈥� when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.鈥�
鈥淲e are told that more than 1,000 districts have adopted such policies,鈥� Alito said in the dissent in .
At issue in the case is the 10,700-student Eau Claire district鈥檚 2021 administrative guidance on 鈥済ender identity support.鈥� The guidance calls for staff members to develop such plans 鈥渨hen appropriate or necessary鈥� for transgender, non-binary, or gender-nonconforming students. The plans might address restroom use, athletic participation, or social, medical, surgical, or legal processes.
Because some students are not open about their gender transitions at home, the policy contemplates instances in which parents would not be involved in creating the gender support plan.
Alito, in his dissent, highlighted a facilitator guide that said, 鈥淧arents are not entitled to know their kids鈥� identities. That knowledge must be earned.鈥�
The guidance was challenged by an informal parents鈥� association, based on parents鈥� 14th Amendment substantive-due-process right to control the upbringing of their children. But two lower courts did not rule on the merits of their challenge because they concluded that the parents鈥� group lacked standing to bring the suit.
The U.S. Court of Appeals for the 7th Circuit, in Chicago, held in March that parents could not challenge the district鈥檚 policy unless they could show that their child was transitioning or considering a gender transition.
Dissenting justices claim such policies 鈥榢eep parents in the dark鈥�
In his dissent, Alito said 鈥渢he challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the 鈥榠dentities鈥� of their children, especially if the school believes that the parents would not support what the school thinks is appropriate. Thus, the parents鈥� fear that the school district might make decisions for their children without their knowledge and consent is not speculative.鈥�
Alito said he would grant review so the court could address lower courts鈥� questionable view of one of the Supreme Court鈥檚 key precedents on what gives someone appropriate standing to bring a lawsuit, which he said was leading some of those courts to avoid ruling on the merits of 鈥渟ome particularly contentious constitutional questions.鈥�
Justice Brett M. Kavanaugh indicated that he would grant review of the case, but he gave no explanation and he did not sign onto Alito鈥檚 dissent.
Last May, the Supreme Court declined to take up a similar case from Montgomery County, Md., in an appeal of a decision by a different federal appeals court that a parents鈥� group lacked standing to address that district鈥檚 gender support guidance. No member of the high court dissented from that action, in Parents 1 v. Montgomery County Board of Education.
In the Wisconsin case, the parents group, backed by the America First Legal Foundation, a conservative group led by Stephen Miller, who will soon be President-elect Donald Trump鈥檚 deputy chief of staff for domestic policy, and the Wisconsin Institute for Law & Liberty, a conservative group focused on the Badger state, argued to the high court that the 1,000 or more districts that have adopted gender support policies are doing so with the clear exclusion of parents from the process and even hiding important information about their children from them.
鈥淪chool is now like Las Vegas,鈥� . 鈥淲hat happens at school stays at school.鈥�
The Eau Claire district, urging the court not to take up the case, said the parents鈥� group mischaracterized the administrative guidance. Even when a student does not want their parent to participate in a gender support plan, such plans are school records that are kept in the student鈥檚 files and would be available to parents at any time.
The parents鈥� group 鈥渂ased its lawsuit on a claim that at some unknown point in the future one of its members鈥� children might identify as transgender, and if so, they might request gender support from the district, and then, further, they might also request that the district not immediately notify their parent of these facts,鈥� the school district said in its brief. 鈥淸The parent group鈥檚] claim of possible future harm is completely dependent upon this highly attenuated chain of future possibilities that may never occur.鈥�
