After the U.S. Supreme Court declined to hear a case surrounding a public school district’s policy of concealing student gender transitions from parents, a veteran attorney who worked at the U.S. Department of Education is explaining the massive implications.
Earlier this week, the high court declined to hear Parents Protecting Our Children, UA v. Eau Claire Area School District, a case that would have put parental rights front and center.
Sarah Parshall Perry, a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation and a former senior counsel at the U.S. Department of Education, said the battle centered on policies implemented at the Eau Claire Area School District in Wisconsin.
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“The Supreme Court decided that they were not going to take up what was a challenge to the constitutionality of a school policy keeping gender identity information of minor children … confidential from their parents,” Perry said. “Now, this is a shocking policy, but it is one of about 1,200 policies across the country.”
In fact, the legal expert said there are around 12 million American kids in public schools across America who fall under such guidelines.
“If they identified as transgender or gender dysphoric, or … using different names or pronouns, their parents could not find out that information on the child’s say-so,” Perry said. “All a child would have to do is say, ‘Keep that information confidential for my parents,’ and that’s exactly what would happen.”
Before the case reached the Supreme Court, the 7th U.S. Circuit Court of Appeals had said the parents in the case lacked standing, meaning they had not been harmed and, thus, couldn’t take action. Perry explained what this means in practice.
“An interesting thing to note about this particular case coming out of Wisconsin is that the individual group of parents, a coalition of parents, did not have any children who identified as being transgender or with gender dysphoria,” she said. “It’s significant because the parents challenged the policy on a facial basis.”
This is a term that essentially means the parents believed the school district policy is unconstitutional in and of itself and must be struck down for the good of all. On the contrary, an as-applied constitutional challenge is one that sees a law or policy as unconstitutional in a specific context.
Perry said the facial argument, in her view, is appropriate for the parents’ case.
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