School district can't hide student gender identity 'transition' from parents, Wis. judge says

CNA Staff, Sep 30, 2020 / 16:43 pm

A temporary injunction has halted the Madison School District from following gender identity guidance that critics said concealed from parents whether teachers and staff were affirming students in transgenderism.

Judge Frank Remington of the Circuit Court of Dane County issued a Sept. 28 court order barring the district "from applying or enforcing any policy, guideline, or practice reflected or recommended in its document entitled 'Guidance & Policies to Support Transgender, Non-binary & Gender-Expansive Students' in any manner that allows or requires district staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school, including information about the name and pronouns being used to address their child at school."

Attorneys from both the Milwaukee-based Wisconsin Institute for Law and Liberty and the Alliance Defending Freedom national legal group initially represented 14 individual parents from eight families in their challenge to the guidance and policy.

"It should go without saying that school district staff should be honest with parents, especially when it comes to critical matters concerning their children, but we are pleased that the court has issued an order now requiring it," Roger Brooks, senior counsel with the legal group Alliance Defending Freedom, said Sept. 29.

Brooks said attorneys will continue to argue for their clients' "legitimate concern" over the policy of "deceiving parents" and "excluding them from profound decisions involving the well-being of their own children."

Luke Berg, deputy counsel for the Wisconsin Institute for Law and Liberty, told the Wisconsin State Journal that the order is "a big win" that shows the policy is "concerning and problematic." However, he argued the order did not go far enough because it does not require parents to be proactively notified of a child's request to adopt a transgender identity.

"Our argument is you can't facilitate a transition without parental consent," he said.

Alliance Defending Freedom attorneys said the school district guidance instructs district employees to help children of any age adopt a transgender identity at school if the child requests it, without notifying parents or securing their consent. The request would be concealed from parents unless the child consents to parents being told.

The 33-page book on guidance and policies regarding support for transgender, non-binary and "gender expansive" students bears the label of the school district and begins with a message from Superintendent Jennifer Cheatham. However, the policy has not formally been adopted by the school board.

In response to Judge Remington's order, the school district has said the guidance isn't designed to "misrepresent or conceal anything from parents."

The district said the guidance "prioritizes working in collaboration with families to support our students and it is always our preferred method of support." The district said it will "continue to prioritize the safety and well-being of every individual student to the best of our ability."

The school policy book section on family communication appears to take two approaches depending on whether a student's family supports or does not support a self-identified gender identity.

The policy book says the district works to "include families in the process of supporting a student's gender self-determination, including transition." Families should be made aware of policies that support and protect their child. It discusses a "gender support plan" meeting and a communication plan that "meets the needs of the family-school team."

However, the guidance and policy book also outlines responses that appear to show skepticism towards families that might not support a student's self-identification as "transgender, non-binary and gender-expansive."

"Disclosing a student's personal information such as gender identity or sexual orientation can pose imminent safety risks, such as losing family support and housing," the book said. All staff correspondence and communication to families regarding students must use their names that are recorded in school district systems "unless the student has specifically given permission to do otherwise."

"This might involve using the student's affirmed name and pronouns in the school setting, and their legal name and pronouns with family," the guidance and policy book said. If a student insists on "maintaining privacy from their family," then student services staff "shall discuss with the student contingency plans in the event that their privacy is compromised."

"Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender," said the book.

Defenders of the guidance include attorneys representing three Madison high school student groups focused on gender and sexuality.

The plaintiffs submitted an expert affidavit challenging gender transition in minors.

The affidavit was by Dr. Stephen B. Levine, a clinical professor of psychiatry at Case Western Reserve University School of Medicine and a distinguished Life Fellow of the American Psychiatric Association with specialties in sexuality and therapies for sexual problems.

Levine said "therapy for young children that encourages transition cannot be considered to be neutral, but instead is an experimental procedure that has a high likelihood of changing the life path of the child, with highly unpredictable effects on mental and physical health, suicidality, and life expectancy. Claims that a civil right is at stake do not change the fact that what is proposed is a social and medical experiment."

Such experimentation must follow appropriate ethics, and involvement of one or both parents in the large majority of cases is "essential" for responsible, effective and ethical diagnosis and treatment of those who may be suffering from gender dysphoria or a related condition, he said.

His affidavit said there are "widely varying views" among experts about the causes and appropriate therapeutic responses to gender dysphoria in children. A majority of children with gender dysphoria will outgrow it by puberty or adulthood, and it is not known how to distinguish children whose condition persists from those who do not. Some recent studies suggest that actively affirming transgender identity in young children will "substantially reduce" the number of children who later cease to self-identify as transgender, possibly increasing the number of people who suffer "the multiple long-term physical, mental, and social limitations" of those who live as transgender, the affidavit said.

The number of plaintiffs challenging the policy has dropped from 14 to six as parents have moved out of the school district or have pulled children from its schools.

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