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Appeals court upholds decision against parents who sued Mass. school for not disclosing child’s gender identity
“Parents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school.”
A federal judge dismissed an appeal from Massachusetts parents who thought their child’s school should have informed them of the student’s “genderqueer” identity, upholding a lower court’s decision to dismiss the suit in 2022.
Marissa Silvestri and Stephen Foote, the then-11-year-old’s parents, filed a lawsuit in U.S. District Court against school district employees and the town of Ludlow after they weren’t informed of their child going by a different name and a variety of pronouns at school beginning in 2020.
At the center of the suit was Ludlow Public Schools protocol of not informing families of a student’s gender identity without that student’s consent. The decision said Ludlow’s policy came from guidance issued in 2012 by the state Department of Elementary and Secondary Education to avoid gender discrimination.
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DESE advised districts to accept a student’s stated gender, and, in light of any potential safety concerns at home, counselors and teachers should defer to how the student wants to be referred to in written communication with parents, the judge wrote.
“The Parents assert that Ludlow’s practice of accommodating and concealing their child’s requested name and pronouns while at school interferes with their parental rights as guaranteed by the United States Constitution,” the court’s decision said. “Ludlow counters that its Protocol is appropriate and necessary to ensure a safe and inclusive school learning environment for students.”
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Upholding the District Court’s decision, the U.S. Court of Appeals for the First Circuit found that the parents didn’t prove that the school’s policy didn’t violate their “fundamental right to direct the upbringing of their child.”
“Providing educational resources about LGBTQ-related issues to a child who has shown interest imposes no more compulsion to identify as genderqueer than providing a book about brick laying could coerce a student into becoming a mason,” the decision said.
Sixth grader emails school staff: “I am genderqueer”
The student, referred to as B.F., was a sixth grader at Baird Elementary School in Ludlow in the 2020-21 school year when the school librarian set an assignment to create biographical videos and encouraged students to include their pronouns, according to the decision.
The parents’ complaint didn’t say if the student, who was assigned female at birth, included their pronouns. However, the parents claimed the student’s school Google account began receiving “unsolicited LGBTQ-themed video suggestions.”
In December of 2020, the student reached out to a teacher, indicating that they were struggling with self-esteem issues and depression but didn’t know how to ask their parents for help. “After reviewing the student’s situation with other teachers,” the teacher contacted the parents, according to the decision.
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Silvestri replied that she and Foote appreciated the school’s concern and indicated they would contact professional help. However, the parents requested the school not have any other private conversations with the student about any mental health issues, according to court documents.
Two months later, the student emailed their teachers, counselor, and superintendent that they are “genderqueer.” They requested to be referred to by any pronouns (other than it/its) and requested a name change from “B–” to “R–.”
They explicitly asked to continue using “B–” and she/her pronouns with parents, according to the decision. The school complied, provided the student with LGBTQ-related resources, and told the student to use any bathroom they chose, the judge wrote.
The parents quickly found out, however, and argued that the student’s name and pronoun changes constituted a mental health issue, the decision said. The school said their policies are in compliance with Massachusetts anti-discrimination laws.
Both courts agreed with the school district, rejecting the parent’s claim that “Ludlow usurped the Parents’ fundamental right to direct medical treatment for their child.”
“Although the Parents described the decisions made by Ludlow educators as ‘mental health treatment,’ their labeling, without more, cannot transform the alleged conduct into a medical intervention,” the decision said.
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Parents’ rights, protected by the Due Process Clause in the Fourteenth Amendment, “are not unlimited,” the court decided. The district’s nondisclosure policy didn’t restrict parental rights.
“We acknowledge the fundamental importance of the rights asserted by the Parents to be informed of, and to direct, significant aspects of their child’s life — including their socialization, education, and health,” the court wrote. “Parents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school.”
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