Court allows schools’ “Don’t Tell Parents” policy

A divided Wisconsin Supreme Court on Friday turned back a court challenge by parents who wish to be informed when their child wants to identify as the opposite sex.

The lawsuit centers on a Madison, Wis., school district policy that requires school teachers and administrators to refer to students by their preferred name and pronouns regardless of whether parents have given permission. The policy also bars disclosure of students’ chosen pronouns and gender identity to parents.

In its 5-4 ruling, the justices affirmed a lower court ruling that required the parents, who had asked to proceed under pseudonyms, to disclose their names to the court and to law firms representing the school district. A lower court agreed with parents that disclosure of their names could expose them to a substantial risk of threats and harassment. But it said they could share their names with the attorneys on the case, and the court would order them to keep the parents’ identities confidential.

The Supreme Court majority also refused a request for a temporary injunction blocking the law’s enforcement.

“Today, parents’ constitutional rights, the high burden of proof required to intervene in parents’ parenting decisions, and the presumption that parents act in the best interests of their children are all upended by the majority opinion's silence,” Justice Patience Drake Roggensack wrote in the dissenting opinion.

She said that the Wisconsin Constitution and the due process clause of the 14th Amendment guard the fundamental right of parents to make decisions about their children’s education. Justices Annette Kingsland Ziegler and Rebecca Grassl Bradley joined in the dissent.

“Social transitioning is a healthcare choice for parents to make,” wrote Roggensack. “Without an injunction, the parents have no way of becoming involved in such a fundamental decision.”

Roggensack also upbraided the appellate court for failing to act sooner on the parent’s request for an order barring enforcement of the school district’s policy. The circuit court did enter an order saying school staff could not lie to parents if asked directly about student efforts to use a pronoun not matching their sex. The case will continue in lower courts.

Other high-profile cases pressed by LGBT advocates have highlighted threats to parental rights. In May, a federal court in Alabama ruled that parents, not the state, are the proper decision-makers for transgender medical interventions their child may receive. Parents of transgender children challenged and sought to enjoin enforcement of the state’s newly-passed “Vulnerable Child Compassion and Protection Act,” which banned certain procedures used for the treatment of gender dysphoria in minors.

Alabama argues that more compelling interests are at stake than parents’ rights. Citing language from the Supreme Court’s recent abortion ruling, Dobbs v. Jackson, the state is asking a federal appeals court allow it to bar the transgender interventions for youth as similarly not “deeply rooted in our history or traditions.”

Parental rights claims are also on the rise in other contexts, from teaching of critical race theory in public schools to sexually explicit library books. A challenge by some Virginia parents in Albemarle County over a curriculum they contend fosters racial discrimination is before a state appeals court after a trial court dismissed it.

A new Florida law that took effect on July 1 also recognized parental rights, allowing parents to contest school library books and reading lists. At a news conference, Republican Gov. Ron DeSantis dubbed the bill the “strongest curriculum transparency legislation in the country.”

Wisconsin Institute for Law and Liberty counsel Luke Berg, who represented the Wisconsin parents, said the pandemic gave parents a window into the schools that they did not previously have.

“Schools increasingly see it as their role to indoctrinate kids with what they believe is the right view on various social and political issues, and they are increasingly doing so … at younger and younger ages,” Berg said. “And it has awakened parents, I think, to start fighting back, and that’s a good thing.”