The U.S. Supreme Court is currently deciding whether to hear a case addressing one of the most pressing issues of our time: whether public schools can secretly transition children behind the backs of parents. The case arises from a policy of the Montgomery County Board of Education (MBCE) in Maryland that obligates school officials to hide children’s gender choices from parents. Parents Defending Education, a non-profit watchdog, estimates that the MBCE policy is just one of the 1,060 such policies in the nation that cover more than 10 million children. Under these policies, children, with the help of school officials, live out one gender identity at school, and school officials communicate with parents as if nothing has changed, as if their child isn’t living a new life and going by a new name and using new restrooms.
The parents challenging the policy lost in the lower courts and appealed to the Supreme Court in late 2023. In a positive sign, the Supreme Court asked the school board to submit an opposition brief, indicating that the court is seriously considering whether to weigh in on the dispute. Gender identity ideology has infected the nation, and it is spreading particularly fast through the public school system. The court should take the case and vindicate the bedrock principle that has governed western civilization for centuries: that parents have a fundamental right to direct the education and moral upbringing of their children — including at public schools.
The Gender Policy
MBCE’s “Guidelines for Gender Identity” are designed to ensure that all students “feel comfortable expressing their gender identity” and to “[s]upport students so they may participate in school life consistent with their asserted gender identity.” To accomplish that goal, the guidelines guarantee all students — prekindergarten through 12th grade — at least two things: (1) “the right to keep private one’s transgender status or gender nonconforming presentation” and (2) the right to express their gender identity at school. Critically, school staff are instructed to use “the student’s legal name and pronoun that correspond to the student’s sex assigned at birth” when communicating with parents — unless the student has specified otherwise. For those students wrestling with their gender identity, school officials should develop a “gender support plan” that ensures the student is not discriminated against in his or her new gender identity, including which names and pronouns to use, athletics, locker rooms, extracurriculars, bathrooms, etc. The support plans are also designed to ascertain whether the student’s parents “are aware of and supportive of the student’s gender identity.” If the student’s parents are deemed “nonsupportive,” school officials are instructed to “withhold information” from parents. (READ MORE: I Read Ellen ‘Elliot’ Page’s Pageboy, and It Shows Just How Half-Baked Transgenderism Is)
Based on this policy, students as young as 5 can transition to a different gender, and their parents may never even know about it. And it isn’t as though the public schools are passive players in the gender ideology war. School districts across the nation are aggressively “indoctrinating children in gender identity ideology” and actively facilitating the transition of young children — all while hiding this information from parents.
Legal Issues Debated by the Supreme Court
The parents’ primary argument is that the policy violates their “fundamental right to direct the upbringing and education of their children.” Before addressing that issue, however, there is a second, antecedent issue at stake: whether the parents even have a legal right to bring the case. This doctrine, known as “standing,” is an important constitutional doctrine rooted in separation-of-powers principles that seeks to ensure that courts decide real “cases” between parties who are actually injured by the law or policy being challenged. Standing keeps courts in their proper lane in our constitutional republic and ensures that most political and legal issues are resolved not by unelected judges but by using our normal democratic processes — elections and the court of public opinion. The Constitution reserves many issues to “we the people,” and standing helps preserve this important principle.
But not here. Our independent judiciary stands as a bulwark against tyranny, and no court should hide behind secondary legal doctrines to shirk its primary duty — upholding the rights guaranteed by the Constitution.
The 4th Circuit Court of Appeals held that the parents had no standing to bring this case because they didn’t allege that any of their children were struggling with their gender identity or that the schools were withholding any information from them. The court is dead wrong on this point, as the dissenting opinion made clear. Indeed, how could parents know this information when the policy itself prevents them from accessing the very information that the majority says is needed to bring the case? Moreover, the law doesn’t require citizens to wait to suffer irreparable harm before they can bring suit to vindicate their constitutional rights. If that were the law, parents would have no right to bring a case until it was too late, until their son or daughter had already undergone a social transition with the help of school officials. As the dissent noted, if the 4th Circuit’s decision stands, gender issues — perhaps the most sensitive and important topic a child can face today — will be pulled “from the family circle to the public schools without any avenue of redress by the Parents.” That cannot be the law.
Even more important than standing is the merits of the case. Do parents have any say, any rights, over their children’s education after they enroll them in public school? According to one side of the debate, the answer is no. Once parents choose to send their children to public school, any rights they may have had are gone, and children belong to the state.
This is not the law. The history of Western civilization and our nation makes clear that parents, not the state, possess the fundamental right to educate their children and direct their moral upbringing. And both simple logic and cases from our early history make clear that parents retain this right at public schools. While schools do stand “in place of the parent” for limited purposes, such as teaching children core subjects like math and science, courts should never presume that parents have “delegated authority” to schools to instruct and indoctrinate children in what the Supreme Court calls “matters of public concern,” i.e., fundamental worldview issues. As a brief submitted to court for this case states, “This is particularly true given the changes in public education occurring over the last two centuries—changes including compulsory education, the inability of parents to sign employment contracts with the state, the coercive economic power of the state in public education, and state-mandated educational agendas.”
Gender ideology is certainly a matter of public concern, as the Supreme Court itself has made clear. The ideology, the brief explains, is “rooted in a worldview called expressive individualism, which holds that human identity is primarily sexual and is rooted in a person’s own psychological and subjective view of oneself. It touches on the deepest moral, social, and religious questions, even going to the heart of what it means to be human. Accordingly, decisions related to children’s gender choices are reserved for parents, and ‘the state has no right to facilitate a child’s social gender transition or hide it’ from them.”
At issue in this case is one of the pillars on which our nation and Western civilization itself was built: the right of parents to direct their children’s moral formation. Rebuking these schools and vindicating the rights of parents is critical to preserving liberty and stemming the rising tide of totalitarianism on the left.
Ernie Walton is an assistant professor at Regent University School of Law in Virginia Beach, Virginia. Some of the content from this article was taken from his articles and the brief he and his colleague submitted in the case.
