Wisconsin court ruling a “huge win” for parental rights

When a 12-year-old girl grappled with depression and anxiety in December 2020, she told her parents she wanted to change her name and pronouns. According to a lawsuit filed later, her parents looked into professional and medical support for her, first wanting to explore the cause of her feelings before making any changes.

But against her parents’ objections, staff at her school in Wales, Wis., began to refer to her by the new name and pronouns. Her parents then withdrew her from the Kettle Moraine School District’s middle school. A few weeks later, their daughter decided that she no longer wanted to identify as another gender.

A year later, the parents, joined by another set of local parents, sued the district for going against their rights as parents, according to the lawsuit filed by the Wisconsin Institute for Law and Liberty and Alliance Defending Freedom. Due to privacy concerns, the family’s names have not been released.

Last week, the Waukesha County Circuit Court ruled in the parents’ favor, stating that the school district’s policy allowing students to change their names and pronouns at school without parental consent violates constitutional rights.

The policy breaches parents’ rights to make medical and healthcare decisions regarding their children, Judge Michael Maxwell wrote in his order on Oct. 3.

“The school district could not administer medicine to a student without parental consent. The school district could not require or allow a student to participate in a sport without parental consent,” he wrote. “Likewise, the school district cannot change the pronoun of a student without parental consent without impinging on a fundamental liberty interest of the parents.”

Without express parental consent, the school district can’t refer to a student using “a name or pronouns at odds with the student’s biological sex,” Maxwell added.

While Maxwell acknowledged the topic can be controversial, this particular case asks whether a school district can override parental rights. “The well-established case law in that regard is clear—Kettle Moraine cannot,” he said.

The case centered on who ultimately gets to decide if a identifying as another gender is in a child’s best interest, said Luke Berg, deputy counsel at the Wisconsin Institute for Law and Liberty. For decades, the U.S. Supreme Court and other courts have upheld that parents have decision-making authority over their children, including in regard to medical issues.

Parents’ rights to control the upbringing and education of their children is grounded in the 14th Amendment, the lawsuit states. Numerous mental health experts, two of whom presented affidavits for the case, said that identifying as another gender early in life can affect mental health negatively.

“They have carved out this one very serious and controversial issue and said not only, parents, do you not get to be involved in the decision, but you don’t actually even get to know what’s happening with your kids at school,” Berg said. “It’s causing parents nationwide to speak up and begin fighting back against these policies.”

The case represents a “huge win” for parental rights, Berg said. He estimates there are about 20 similar cases going on around the country.

Just a day before Kettle Moraine’s decision, a federal appeals court directed a lower court to block an Iowa school district’s policy that required staff and students to affirm classmates’ gender identity decisions.

The 8th U.S. Circuit Court of Appeals ruled in favor of Parents Defending Education, which challenged the policy. The court explained that Linn Mar Community School District’s policy was “unconstitutionally vague.”

However, in August, another federal appeals court found a group of parents could not challenge a similar policy in a Maryland school district. The 4th U.S. Circuit Court of Appeals ruled that three parents in Montgomery County, Md., lacked the standing to challenge the policy.

Judge A. Marvin Quattlebaum said because the parents had not alleged their children had gender support plans or were transgender, the parents lacked standing to pursue their “compelling arguments.”

Both of these rulings, while important, don’t focus on the key issue of parental rights, Berg said. Kettle Moraine’s ruling is the first of its kind in the country.

“This a scary issue, as a parent, when you have a school district policy that says explicitly, if this issue arises for your child, we will make the decision at school ourselves and not tell you what we’re doing,” Berg, a father of three boys, said. “It makes you worry about what you’re not being told at school and it’s totally contrary to what you expect when you send your children to public school.”