The war on parents’ rights
January 23, 2020 | Published first in Washington Examiner
“Our school kept parents in the dark,” wrote Jay Keck in USA Today. He described how his daughter’s public school facilitated her “gender transition”:
She first came out as transgender to her school, and when she announced that she was a boy, the faculty and staff — who had full knowledge of her mental health challenges — affirmed her. Without telling me or my wife, they referred to her by her new name. They treated my daughter as if she were a boy, using male pronouns and giving her access to a gender neutral restroom.
But now, a courageous group of Wisconsin families is threatening to sue the Madison public school district over its gender policies, which permit schools to deny parents any information about their child’s gender identity or possible gender transition plans. In their demand letter, the families ask the Madison Metropolitan School District to repeal its gender policies and resolve the following issues (emphasis added):
Specifically, the Policy allows children of any age to change gender identity at school without parental notice or consent, prohibits teachers and other staff from notifying parents about this (without the child’s consent), and, in some circumstances, even requires teachers and other staff to actively deceive parents.
Parents and students in other jurisdictions have sued over school gender policies before (some cases are ongoing), mostly to challenge transgender access to bathrooms, or traditionally sex-segregated facilities and activities, on the basis of student privacy or Title IX discrimination.
But the Madison families’ demand letter isn’t about bathrooms and sports; it zeroes in on something more fundamental. These parents, represented by the Wisconsin Institute for Law and Liberty, are fighting to protect their constitutional right, “under the due process clauses of the state and federal constitutions, ‘to direct the upbringing and education of [their] children.’”
That is, to protect parents’ rights.
All conservatives, not just parents, need to pay attention. The Madison school system’s gender policies, like similar policies embedded in public schools across the country, betray an appalling disregard for parental rights and for the limits of state power. These intrusive policies, say the parents, empower school officials, who, after all, are state actors, “to facilitate a child’s social transition to a different gender identity at school, without parental notice or consent” and prohibit staff “from communicating with parents about a subject directly relevant to their children’s welfare,” in this case, the child’s gender identity and planned transition, unless the child first consents.
These policies should scare the hell out of parents and grandparents. And they ought to outrage anyone who believes the family precedes the state. The state simply has no authority to control parents’ involvement in their child’s life, absent a showing of harm and appropriate due process.
A gender transition is a radical step. Few aspects of a child’s development are more significant than identity formation. Until recently, a child’s sex (male or female) was understood as a “given,” foundational to one’s identity. No longer. In Madison’s public schools, like most U.S. public schools today, gender ideology has displaced scientific, religious, and moral truth as the authority on “who we are.”
The district’s guidance tells teachers they need to “disrupt the gender binary.” Children, after all, must feel free to assert their own gender identities, regardless of their “sex assigned at birth.” Madison’s gender-inclusive schools teach children the range of gender identities, from cisgender and transgender to gender-fluid, queer, and nonbinary. Children learn about “gender expressions,” “coming out,” and the importance of “validating” all gender identities. They are taught that puberty happens to “people with penises” and “people with vaginas/vulvas/uteruses,” not “boys” or “girls.” Children also learn that if they want to “transition,” that is, to “more closely align their outward identity with the gender they know themselves to be,” the school will affirm their identity and support their transition. Even if their mother and father won’t.
This is crazy. For a child to disown his sexual identity is as destabilizing as disowning his parents. It changes everything.
And yet, the child’s say-so is all that it takes for the school district to shut the door on parental involvement in the child’s in-school gender transition. No parental notice. No parental consent. No big deal. It’s to support the children, you know.
A Maryland school official from a district with gender policies similar to Madison’s takes exactly that line. She told me that her office, which oversees gender transitions, has had “issues” with parents who find out, after the fact, that the school facilitated their child’s gender transition. When they say, “How dare you?” she demurs, saying, “We’re here to support the child,” and passes the buck to the school’s legal department. “Support” means only one thing: fast-tracking the child’s transition, whether parents are on board or not.
This approach contrasts starkly with schools’ parental consent requirements on other matters. Madison routinely requires parents to sign consent forms for children to play sports, take over-the-counter medicine at school, receive enrichment classes, or even participate in a school-produced Disney musical. But not to transition genders.
These gender policies not only usurp parental rights, but they also endanger children. In their demand letter, the Madison parents note that children seeking to transition typically experience gender dysphoria, a recognized psychological diagnosis, and “often require professional assistance (whether or not they transition) … and only parents can select and pay for such assistance and provide informed consent on behalf of their children.” Parents cannot get troubled children professional help if schools shut them out.
Even the gender-affirming World Professional Association for Transgender Health (WPATH) recognizes “social transition” as “an important psychotherapeutic intervention” that “can dramatically alter outcomes for children who suffer from gender dysphoria.” Although most children who experience gender dysphoria eventually “desist” and make peace with their bodies, those who initiate social transition step onto a rapidly moving sidewalk headed in only one direction: toward medical transition. And as numerous parents will attest, medical transitions permanently harm children.
Gender transition is a radical step; it’s outrageous for schools to keep parents in the dark about something so serious. Why is there no public outcry about this, especially when more people identify as ideological conservatives (37%) than as moderates (35%) or liberals (24%)?
Madison officials claim they received no complaints when they released their gender guidance. I asked Luke Berg, the attorney representing the Madison families, why most parents fail to protest such policies, much less file a lawsuit. “Most parents simply aren’t aware,” he says. “This is a relatively new phenomenon. The Madison School District adopted these policies just a few years ago within a 35-page document containing a variety of other policies, and, as you can imagine, didn’t exactly promote the portion that directs staff to hide gender transitions from parents. As we spread the word about these policies, we found that most parents were shocked and very troubled, and multiple were willing to join a lawsuit to challenge them.”
There are other reasons, too. Social media mobs are brutal. Anyone who speaks an unpopular truth, such as “females are women, transgender women are men,” is quickly targeted by online hordes. Students seeking to limit school bathrooms and locker rooms to students of the same sex, for privacy, are publicly “ belittled and bullied” for it. Powerful gay and transgender groups pressure local school boards to pass transgender policies and gin up hostility toward parents who oppose them. The prospect of being labeled a “bigot” is a powerful deterrent. Strategically, it is also easier to galvanize support for women’s safety and the future of girls’ sports, or opposition to “drag queen story hours” and gender-bending books for kindergarteners, than it is to rally support for the abstract idea of “parents’ rights.”
Even so, some courageous Madison families are challenging the state’s power grab. The law is on their side. The Supreme Court has recognized that “the interest of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests.” And parents have the right “to direct the upbringing and education of children under their control.” Wisconsin court rulings and decisions from other states uphold parents’ rights, too.
However, during the Obama era, activists and liberal bureaucrats championed gender policies that undermined, even denied, parents’ rights. These policies spread like an ideological virus through public schools in all 50 states. In May 2016, President Barack Obama’s Department of Justice and Department of Education released an incendiary “Dear Colleague Letter on Transgender Students” purporting to reinterpret “sex” under Title IX to require equal access on the basis of gender identity. The administration threatened the federal funding of noncompliant schools, resulting in lawsuits and escalating tensions around school gender policies.
When President Trump was elected, conservatives expected a rollback of the Obama administration’s transgender policies. They breathed a sigh of relief in 2017 when his Department of Education withdrew the controversial 2016 guidance letter on transgender students. But inexplicably and indefensibly, the Trump Department of Education has failed to withdraw the equally damaging companion document to the guidance letter: “ Examples of Policies and Emerging Practices for Supporting Transgender Students.” (In contrast, when the Trump Department of Education sought to undo damaging Obama-era actions on school discipline, it withdrew not only the “Dear Colleague Letter on Nondiscriminatory Administration of School Discipline” but numerous related documents as well.)
Thus, the Department of Education, under ” Resources for LGBTQ Students ,” promotes policy “ examples” that give schools the green light to hide children’s gender transitions from parents. Almost across the board, these gender policies betray institutional arrogance, hypervigilance, and antagonism toward parents who resist the gender-affirming approach. Several example policies warn that parents may present “safety concerns” for transgender children; most caution schools not to tell parents of a child’s gender identity or transition without the child’s permission.
Even now, the fourth year of the Trump administration, the Obama “ examples” document lives on, promoted by activist groups and various states that use it as a resource for their own public schools. It’s worth asking: Why does the appalling legacy of Obama-era hostility toward parents’ rights continue under supposedly conservative leadership?
Gender policies, such as Madison’s and those promoted by the Department of Education, are ideological documents. They don’t materialize out of thin air. They are drawn, sometimes verbatim, from model policies and supplemental materials written and heavily promoted by activists and left-wing legal groups. For example, Gender Spectrum developed a ” Gender Support Plan” now used in many school districts. The Gay, Lesbian, and Straight Education Network developed “ model policies” on a range of issues relating to transgender and gender-nonconforming students. The ACLU’s “open letters” put school districts on notice that they risk lawsuits unless they capitulate to gay and transgender demands.
As Berg observes, GLSEN “has recently been promoting a set of ‘model’ policies for schools, including policies allowing gender transitions at school without parental involvement. The Madison School District consulted with GLSEN to develop its policy but failed to give parents an opportunity to weigh in. We hope our case will help to establish that schools can’t exclude parents from significant and controversial decisions like changing gender identity.”
Cloaked in woke language about validating children’s gender identities, supporting children’s (supposed) autonomy, and affirming the child’s right to “gender self-determination, including transition,” public school officials are engaged in a monumental power grab that wrests from parents their fundamental right to care for their child and direct their child’s upbringing.
Conservatives, particularly parents, ought to be pounding on Betsy DeVos’s door, demanding that her department withdraw the Obama-era policy guidance. They ought to seek an unambiguous statement from the Trump administration that it supports the rights of parents to know when their own child experiences identity confusion and to decide what is best for their own child, without interference from liberal bureaucrats. Conservatives ought to press the Justice Department and the Department of Education’s Office of Civil Rights to investigate schools that violate parents’ statutory right to student information, and that abridge parents’ rights with no notice or due process. And last but not least, more parents must step forward courageously to protect their rights and their children’s futures.