A Florida man will ask an appeals court to toss out a recently appointed federal judge’s ruling that he has no right to sue a Villa Park elementary school district for allegedly conspiring with his ex-wife to encourage their child to identify as a different gender, because his fundamental constitutional parental rights all but end at the school house door.
On June 13, an attorney for Bryan Vesely filed a notice of appeal in Chicago federal court, indicating he is seeking to overturn a ruling from U.S. District Court Judge Lindsay C. Jenkins, dismissing his lawsuit against Villa Park School District 45 and his ex-wife.
Vesely is represented in the action by attorney Dean J. Tatooles, of the firm of Cole Sadkin LLC, of Chicago.
According to an online docket for the case at the U.S. Seventh Circuit Court of Appeals, Vesely has until July 24 to file his opening brief, explaining and supporting his appeal.
The case has been pending in Chicago federal court for more than a year. In his lawsuit, Vesely alleged the school district, located in DuPage County in Chicago’s western suburbs, had trampled his fundamental rights as a parent.
According to the complaint, Vesely shares custody of the child, identified in the complaint as A.V. The child was 12 years old at the time the complaint was filed.
The complaint identified A.V. as Vesely’s son, who was then a sixth grade student at Jackson Middle School in Villa Park.
According to the complaint, A.V. “expressed to his parents and School District 45’s staff that he wanted to adopt a new female name and use female pronouns at school,” as well as “dress as a female and wear make-up, including nail polish and lipstick.”
According to the complaint, Vesely believes that “immediately transitioning would not be in his minor son’s best interest,” and asked “A.V. to take time to explore the cause of his feelings before allowing such a significant change to his identity.”
However, after lodging his objections with the school district, Vesely asserted the school district instead conspired with his ex-wife to speed up the gender transition at school.
After being repeatedly ignored by the school district, Vesely sued, seeking a court order vindicating his rights as a parent and forbidding school staff from referring to A.V. and other students “using a name or pronouns at odds with their biological sex, while at school, without parental consent.”
In response, District 45 and Vesely’s ex-wife, Susan Hardek-Vesely, asked the court to dismiss the lawsuit, saying Vesely has no such rights over the child while at school.
In court filings in support of that motion, the school district specifically argued that, under Illinois law, Vesely all but loses his rights as a parent, if he opposes his child’s gender transition.
In her ruling, Jenkins did not address those particular arguments by the school district.
However, the judge said Vesely’s otherwise fundamental constitutional rights as a parent don’t necessarily require school districts to respect his wishes as a parent.
Citing from prior federal appeals court rulings, Jenkins said she did not believe courts have established “the existence of a fundamental right of every parent to tell a public school what his or her child will or will not be taught.”
Jenkins said that limitation on parental rights also should extend to the manner in which a public school may choose to treat a child who may wish to identify as a different gender.
The judge said Vesely’s rights are further diminished by his ex-wife’s apparent desire to encourage their child to transition genders.
The judge, citing a decision from the U.S. Ninth Circuit Court of Appeals in San Francisco, said a public school “cannot be expected to accommodate the personal, moral or religious concerns of every parent.”
In this case, Jenkins said she sided with the school district because Hardek-Vesely’s wishes align with the school district’s policy goal of “maintaining a non-discriminatory environment for students and protecting students’ privacy, mental well-being and physical safety” –especially if that student identifies as transgender.
Jenkins initially dismissed Vesely's case without prejudice, allowing him to attempt to revise his lawsuit to address the perceived shortcomings she identified in her decision. But that decision was converted to dismissal with prejudice, when the deadline passed for Vesely to amend the complaint. With that ruling in hand, Vesely appealed Jenkins' ruling to the Seventh Circuit, according to court docket entries and subsequent filings.
District 45 has been represented in the case by attorney Nikoleta Lamprinakos, of the firm of Robbins Schwartz Nicholas Lifton & Taylor, of Chicago.
Jenkins is among the most recent appointees to the federal bench in Chicago by President Joe Biden.
While only confirmed to the bench this spring, Jenkins has already left a mark, as she was immediately assigned to handle legal controversies addressing significant constitutional and social questions, including Vesely’s case and one of the challenges to Illinois’ ban on so-called “assault weapons.”
In both instances, Jenkins’ rulings sided with those favored by progressive constituencies, rejecting Vesely’s constitutional parental rights claim and agreeing with the state that the Second Amendment does not prevent the state from banning “particularly dangerous” weapons, despite recent U.S. Supreme Court rulings that may suggest otherwise.
Jenkins’ ruling upholding the gun ban has also been appealed to the Seventh Circuit court.