Challenging the gender counselor

MYRNA BROWN, HOST: Coming up next on The World and Everything in It: parental rights on the local level.

Back in December, a mom named Amber Lavigne was given three minutes to speak at her daughter’s school board in Maine. And in those three minutes, she told a chilling story.

AMBER LAVIGNE: On Friday, December 2, we discovered a chest binder in my barely 13 year old’s bedroom. Utilizing these devices can cause serious side effects. After discussing this with our 13 year old minor child, it was revealed to us that the binder was given to her by a district social worker employed at AOS central Lincoln County Maine schools without our permission.

PAUL BUTLER, HOST: As you heard there, Mrs. Lavigne found an undergarment used to make a female’s torso appear to be male. When she investigated, Lavigne discovered that the social worker, a 26-year-old man, had advised her 13-year-old daughter not to tell her parents about the chest binder.

BROWN: Lavigne complained to school officials and then the school board. She requested official school documents explaining what else the social worker had counseled. The school refused. So not long after the board meeting, the family decided to pull their daughter out and homeschool her. Just days later, agents from Maine’s Office of Child Protective Services visited the Lavignes’ home. They’d received an anonymous accusation of emotional abuse at home. After investigating, the agents discovered that wasn’t the case.

BUTLER: As you can imagine, Amber Lavigne was pretty disturbed by the whole situation, so on April 4th, she and her attorneys filed a complaint against the school in federal court.

What’s at stake in this case? WORLD’s legal correspondent Steve West joins us to talk about it.

Good morning, Steve.

STEVE WEST, REPORTER: Good morning.

BUTLER: Well, let’s begin with how the Supreme Court has addressed parental rights in the past.

WEST: Right, there are Supreme Court precedents going back, you know, 100 years that recognize that parental rights to you know, the care and the upbringing and education of children that is a fundamental right, that is recognized in the Constitution, actually in the 14th Amendment. But the court has never articulated exactly how it will review a claim that parental rights have been violated, when, for example, a state or local law impinges on those rights, which is what is happening here. Generally, when you have a fundamental right, like free speech or free exercise of religion, the proper test is strict scrutiny, the most difficult test to pass. That means the state has to show a compelling interest and overriding that fundamental right, and it has to show that it used the least restrictive means of doing so that's how important it has to be. But the Supreme Court hasn't yet said what level of review would be applied in a parental rights situation. So the precedent is helpful, but it's not, not what we would like it to be.

BROWN: What arguments has the school made in response, and what kind of defense do you think they’ll raise in this case?

WEST: Well, the first thing they said here is that, hey, no policy of the state or the local policies, none of those policies had been violated, which is really not the case, if it's to be believed that this particular counselor told Amber Levine's daughter to keep a secret because there is a policy against counseling a student to keep a secret. But even beyond that, I think their argument is going to be based around the idea that they're protecting the student's privacy. And by doing that, protecting the privacy, they're encouraging students who have issues to come forward and talk to a counselor. And if they don't protect the students' privacy, if students don't know that their property's privacy is protected, then soon they're going to be a lot less willing to come forward and talk with them. You know, that being said, that policy could be met by you know, having that confidentiality, but not counseling them to keep secrets and also moving in every way they can toward the involvement of parents in the life, you know, of what's going on with with the child, rather than keeping this completely from the parents. But I think that's going to be the argument.

BUTLER: Now it seems to me like these sorts of conflicts between parental rights and privacy laws will eventually end up in the Supreme Court. Are there any cases like this in the pipeline?

WEST: Well, there's nothing immediately headed to the Supreme Court. This is still an unsettled area of the law. Still, a lot of civil cases that are winding their way through through the courts, particularly through appeals. Back in September, a federal judge declined to block an Iowa law that let students choose to identify as the opposite sex at school, including going by another name, while instructing teachers and counselors and administrators not to tell their parents, so the court refused to block that. That's on appeal to the U.S. Circuit Court of Appeals, which heard oral arguments on it in February. So we're just awaiting a ruling on that case. And then back in December, a federal judge in Massachusetts also ruled in favor of a school board there and said that the school's policy of keeping students’ gender identity secret did not violate parents rights. It cited anti-discrimination law and dismissing that claim and basically said that, you know, while parents have rights, they may choose to send their children to public schools, but they don't have a constitutional right to dictate how schools educate children. So we've heard this argument before, you know, you do have parental rights, but your parental rights stop at the school door, you can take your children elsewhere, where you have more control over them, but once you hand them off to school authorities, they're basically you don't you're right, sort of stop at the door. So that's, I don't think that's true, but I think that's the way the court viewed it in that case, and that case is on appeal, as well. So we've got a lot that's still out there. That still needs to work its way through the appeal system, but I suspect one of these cases will reach the Supreme Court eventually.

BROWN: Well, as for Lavigne, the school has not yet responded to her legal complaint, so no answers for her yet. But what do you think parents listening can learn from this situation?

WEST: I think there's a lot to learn, one thing is and I think this became clear during during COVID, when parents began to see you know, what was actually happening at school, because they saw, they saw on the screen at home, the kinds of things that students were exposed to. So the first thing I would say is be informed. Don't assume that administrators are on your side, you know, know the school policies. Many administrators are very good and very open to parents. But know the school's policies, know where you stand and be informed and show up at school board meetings, listen to what's being said. And if you have opportunity and sign up for it as a follow the procedure that they have, you can also let your voice be heard as well. There are a number of parental rights organizations that you can get involved with, and be more informed about some of these issues that are going on as well. But you know, in the end, one of the best things, I think, is to foster the kind of relationship with your children, so that they will trust and confide in you. They don't need to confide just in a school counselor, they have you to come to and know that their opinions will be respected. There'll be listened to and loved. And so that's the best thing.

BUTLER: It is indeed. Steve West is WORLD’s legal correspondent, and you can follow his coverage of religious liberty issues in his weekly newsletter. Just go to wng.org and sign up for Liberties. Steve, thanks for joining.

WEST: Thank you.

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