A federal appeals court will not allow a group of Wisconsin parents to challenge their school district's new "gender identity support" policies, which the parents said direct school officials to unconstitutionally interfere with their rights as parents to direct the upbringing of their children.
In the ruling, a three-judge panel of the U.S. Seventh Circuit Court of Appeals in Chicago said the parents lack the ability to sue at this time because, under federal court precedent, the school district must first use the policies to trample parents' rights before parents can sue under the Constitution.
Parents, however, asserted the existence of the policies and guidance to staff alone mean school officials are already ignoring their rights as parents, by guaranteeing that school officials will undermine parental authority at the child's request.
The school policies at the heart of the legal challenge were enacted in 2021 by the Eau Claire Area School District. The policies were styled as "Administrative Guidance for Gender Identity Support."
According to court documents, the school district said the policies were intended to "foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression" and "address the needs of transgender, nonbinary, and/or gender non-conforming students."
The "guidance" notes that "some students might 'not [be] 'open' at home for reasons that may include safety concerns or lack of acceptance.'"
According to court documents, the "guidance" directs teachers, administrators and other school staff to "speak with the student first before discussing a student's gender non-conformity or transgender status with the student's parent/guardian."
In 2022, the school district followed up with a "template Gender Support Plan," which explicitly indicates "that circumstances may arise where 'parents are not involved in creating'" individual "gender support plans" for certain students.
The documents indicate school staff is to inform students that the plans are a part of their official record, which their parents can obtain upon request.
In 2022, the group known as Parents Protecting Our Children sued the Eau Claire schools. They accused the school district of violating their rights as parents under the Fourteenth Amendment and the free exercise of religion clause in the First Amendment.
The PPOC claims its members include parents of students within the Eau Claire District.
Their case was taken up by the Wisconsin Institute for Law & Liberty (WILL) and America First Legal, nonprofit organizations that say they promote parental rights, among other constitutional liberties.
According to a blog post discussing the legal action, WILL noted training materials furnished to school staff about the "gender support guidance" emphasized that "parents are not entitled to know their kids' identities" and instructing teachers to treat religious objections from parents as "weaponization of religion against queer people."
Further, the group said a teacher in the school district allegedly posted a sign telling students: "If your parents aren't accepting of your identity, I'm your mom now."
When the case landed in federal district court, Magistrate Judge Stephen L. Crocker dismissed the lawsuit, saying the parents group lacked legal standing to bring the lawsuit at this point, since they could not establish that the school district had yet taken any actions that violated their parental rights.
For their part, the parents' group's lawyers had conceded the lawsuit was intended to be a "pre-enforcement action." But they argued the lawsuit should be allowed to continue because the "guidance" itself infringes on their rights as parents, in part, "by communicating to minor students that secrets from their parents - including an entire double life at school - are not only acceptable, but will be facilitated by the District upon request."
"The District's Policy transfers decision-making authority over whether a gender-identity transition is in their child's best interests from them to school staff and/or minor students themselves, and the loss of their parental authority over this decision is a present injury, because it prevents them from saying no to a transition," the parents group argued.
On appeal, the Seventh Circuit panel did there was "no doubt" the parents' "allegations punch with conviction and concern."
But the appellate panel agreed with the lower court that school officials must first implement the policies, and help a student shield their "double life" and gender transition from their parents, before parents can sue.
"Parents Protecting’s expressions of worry and concern do not suffice to show that any parent has experienced actual injury or faces any imminent harm attributable to the Administrative Guidance or a Gender Support Plan," the judges wrote. "Maybe that day will come for a member parent. Maybe not.
"All we can say with certainty today is that Parents Protecting’s allegations fall short of establishing a Case or Controversy (under federal legal precedent)," the judges wrote.
The judges noted the decision may not please anyone, as it doesn't in any way address parents' concerns or the "what-if questions" that will follow.
Bu the judges said, at this point, they have "no choice but to stay on the sidelines" until parents from Eau Claire can bring "concrete disputes between adverse parties." Otherwise, they said, such a case invites federal courts "into a range of complex and often emotional challenges on matters of gender identity, where the right policy recipe is not yet clear and the best answers are sure to come in time - through the experiences of schools, students, and families."
The decision was authored by Seventh Circuit Judge Michael Y. Scudder. Judges Diane P. Wood and Amy J. St. Eve concurred in the ruling.
The Eau Claire school district was represented by attorneys Ronald S. Stadler and Jonathan E. Sacks, of the firm of Stadler Sacks, of Richfield, Wisconsin.
Parents Protecting Our Children was represented by attorneys Rick Esenberg and Luke Berg, of the Wisconsin Institute for Law & Liberty, of Milwaukee; and Nicholas R. Barry and Reed D. Rubinstein, of America First Legal, of Washington, D.C.
Esenberg did not respond Friday afternoon to a request for comment from The Cook County Record about the decision.