Protecting Transgender and Gender Non-Conforming Students: Major Court Victory

 

On Thursday, August 18, 2022, the United States District Court for the District of Maryland issued a 39-page decision dismissing a lawsuit against the Montgomery County Board of Education by right-wing attorneys in Virginia on behalf of anonymous parents.  The Memorandum Opinion may be found here. (See, also, here.)  The suit challenged a provision of the MCPS Gender Identity Guidelines, providing that MCPS will not disclose a student's gender identity to parents or guardians unless the student wishes to so disclose.

 

Yesterday, on behalf of the Metro Chapter of PFLAG, I sent this note of congratulations to the Board of Education:

 

 

TO:   Brenda Wolff, President, Montgomery County Board of Education

 

I just wanted to drop a quick note congratulating you and your colleagues on yesterday's victory in Parents v. Montgomery County Board of Education.

 

The WilmerHale attorneys hired by the Board did an excellent job, resulting in a compelling, thoughtful, and thorough decision by Judge Grimm.  Metro DC PFLAG and other groups filed an amicus brief, which we hope helped the argument.  

 

MCPS has made enormous progress in the last two decades in providing safe spaces and support for LGBTQ+ students.  The steadfastness shown particularly in the last eight years has been unparalleled.  

 

I have every confidence that the Board and MCPS will continue, even in the face of new attacks, like the one posed in the Parents lawsuit.

 

As a PFLAG dad and a member of the Montgomery County Community, I thank you all.

 

On behalf of Metro DC PFLAG, I want to thank our partners who were also on the amicus brief (Freestate Justice, The Center for LGBTQ Health Equity – Chase Brexton Health Care, MoCo Pride Center, Rainbow Youth Alliance, SMYAL, and Whitman-Walker, Inc. / DBA Whitman-Walker Health); our dedicated and skillful pro bono attorneys from Cooley LLP (Reese Trevor, Jeffrey M. Gutkin, Ryan O’Hollaren, and David E. Mills), Lambda Legal Defense and Education Fund (Paul D. Castillo), and the National Center for Lesbian Rights (Asaf Orr), who developed and wrote the amicus brief; and PFLAG Director of Advocacy, Policy & Partnerships Diego Sanchez, who brought in our attorneys and contacted others who assisted.   

 

The Court puts to rest (at p. 21 of its Opinion) the assertion that individual parents have the right to veto efforts to protect transgender and gender nonconforming students, pointing out that “it is clear in the case law that parents do not have a constitutional right to dictate a public school’s curriculum or its approach to student counseling.”   

 

And the following language from pp. 23-25 of the Court’s Opinion demonstrates why the Montgomery County Board of Education is doing the right thing:  

 

[The Board of Education’s] concerns about the safety and well-being of transgender and gender nonconforming students in particular are neither theoretical nor fanciful. Research demonstrates that transgender and gender nonconforming students are substantially more likely to be bullied or harassed than their cisgender peers. See, e.g., Amicus Brief at 6 and sources cited therein. 12 The Plaintiff Parents themselves acknowledge that transgender and gender nonconforming students are at a heightened risk of suicide. Compl. ¶ 15; Motion at 26. The Maryland Department of Education noted in its 2015 “Guidelines for Gender Identity Non-discrimination,” that “research indicates that 80 percent of transgender students feel unsafe a school because of who they are,” leaving students unable to focus on their education, and leading some students to miss classes or leave school entirely. And all of these concerns are compounded when a student also lacks support at home. See Amicus Brief at 9–13. For those reasons, I agree with MCBE that the Guidelines further a compelling state interest.

I also agree that the Guidelines are narrowly tailored in furtherance of that interest. The Guidelines do not aim to exclude parents, but rather anticipate and encourage family involvement in establishing a gender support plan. Guidelines at 4. Even where family support is lacking, the inclusion of family is identified as an eventual goal. Id. The Guidelines, on their face, are noncoercive, and serve primarily as a means of creating a support system and providing counseling to ensure that transgender children feel safe and well at school. And, importantly, they apply to each student on a case by case basis. By advising that school personnel keep a transgender or gender nonconforming student’s gender identity confidential unless and until that student consents to disclosure, they both protect the student’s privacy and create, as MCBE puts it “a zone of protection . . . in the hopefully rare circumstance when disclosure of [the student’s] gender expression while at school could lead to serious conflict within the family, and even harm.” Motion at 28. If the Guidelines mandated parental disclosure as the Plaintiff Parents urge, their primary purpose of providing transgender and gender nonconforming students with a safe and supportive school environment would be defeated. A transgender child could hardly feel safe in an environment where expressing their gender identity resulted in the automatic disclosure to their parents, regardless of their own wishes or the consequences of the disclosure. Accordingly, I find that, although they are subject only to rational basis review, the Guidelines also satisfy both prongs of the strict scrutiny analysis.

 

[See also pp. 9-11 of the Court’s Opinion]

 

Sadly, there are forces in Maryland, starting with the Republican Gubernatorial nominee (who brought a similar suit against the Frederick County MD Board of Education in 2017, but voluntarily dismissed it rather than respond to the Board’s motion to dismiss), who advocate policies that would seriously interfere with the efforts of local school systems to protect LGBTQ+ students.  This victory should help us inform the public about why such efforts are needed if we are to serve all of our students. 

POSTSCRIPT:  ON AUGUST 14, 2023, A VERY CONSERVATIVE PANEL OF THE UNITED STATES COURT OF APPEALS, IN A 2-1 DECISION, DISMISSED PLAINTIFFS' APPEAL ON STANDING GROUNDS.  THE DISSENTING JUDGE WOULD HAVE REACHED THE MERITS AND REVERSED JUDGE GRIMM'S DECISION. 

https://www.ca4.uscourts.gov/opinions/222034.P.pdf