Case related to gender identity aims to expand rights for nonreligious parents
Conservative law firm seeking to build on court’s recent textbook decision
When a Massachusetts couple, Stephen Foote and Marissa Silvestri, learned that their 11-year-old child, known in court documents as B.F., was questioning her sexual identity as a girl, they hired a counselor to work with her and instructed their school district not to have any private conversations with the child regarding issues surrounding sexual identity. But, eventually, according the parents’ telling of the story, the school district did so anyway, helping the child transition to a genderqueer identity, at least in the school setting, against the parents’ wishes.
According to the parents’ lawyers, the school district also took steps to conceal what it was doing, instructing teachers that they should not tell the parents that they were using a male name and pronouns with the child, although they found out anyway. The parents then pleaded with the school district to quit interfering with their plan to raise their child as a girl, but to no avail. The result was a lawsuit, Foote v. Ludlow School Committee, which could be facing a U.S. Supreme Court test soon.
The parents lost at both the federal district court and the First Circuit U.S. Court of Appeals. The appeals court made its decision in February, ruling, among other things, that the school district’s actions were “rationally related to its legitimate stated interest” and that while parents had rights under the due-process clause of the U.S. Constitution, those rights are not absolute and did not supersede the school district’s authority.
But that ruling came before last month’s Supreme Court ruling in Mahmoud v. Taylor, in which the court came down on the side of parents wanting their children to be excused from classes where certain LGTBQ-oriented books would be read.
Textbook ruling doesn’t decide this dispute
It is easy to assume that the Mahmoud ruling should bode well for Foote and Silvestri. But it doesn’t necessarily.
Here’s the catch: The Mahmoud case was decided on religious grounds. The high court found that the parents in that case, many of them Muslims or conservative Christians, had a right to practice their religion in the way they raise their children, and that the way the school district was using the books interfered with the parents’ religious rights. But the parents in the Foote case say that they are convinced that the science is behind their decision, and that they have not made their decision on how to raise their child on religious grounds.
As their lawyers say in court documents:
Petitioners do not have a religious objection to their school district’s indoctrination and transition of their children without their knowledge. Theirs is a moral belief, backed by well-supported scientific opinion, that a so-called gender transition harms their children. But their constitutional rights to direct the upbringing of their children remain just as fundamental. The Court should grant the petition and make clear that parents’ fundamental rights do not depend on whether they are religious.
In other words, Foote and Silvestri are claiming that parents have a fundamental right under the Constitution to direct their children’s upbringing, health care, and education without government interference — whether or not they base their decisions on religious beliefs.
That parents have some constitutional rights as parents has long been recognized by the Supreme Court, even though parental rights are not specifically mentioned in the Constitution. But the extent of parental rights has not been clarified in a way that would answer the questions this case raises.1
The parents filed their petition with the U.S. Supreme Court last week in a document known as a writ of certiorari, asking it to consider their case. It takes the vote of four Supreme Court justices to decide whether to hear the case, and there is no set schedule for the court to decide. If the court refuses to hear the case, the decision of the appeals court stands but does not set a precedent outside the First Circuit.
The parents are supported in their case by the Child & Parental Rights Campaign and the Alliance Defending Freedom. The ADF has been a major player in many religious-freedom cases, often taking the cases of clients with conservative religious beliefs.
Among the groups that has supported the school district is GLBTQ Legal Advocates & Defenders, which told the appeals court that best educational practices include policies that promote the flourishing of students and recognize their right to privacy. Among other things, the group argued:
A positive school climate, fostering a sense of safety, belonging, and respect for every student in a school community, has deep and long-lasting effects for every child who experiences it, and is an essential foundation for learning. A review of 78 studies looking to associations of economic background, inequality, school climate, and academic achievement found that positive school climate can raise grades, affect student attendance and achievement and also mitigate the negative effects of poverty on academic performance.
In some ways, the parents are trying to do what Roe v. Wade, the 1973 decision recognizing the right to an abortion, did before it was reversed in 2022. Roe recognized a right to abortion based on a fundamental right to privacy, which is not specifically enumerated in the Constitution but is implied by the right to due process and other constitutional provisions.