School’s Referring to Student by Student-Preferred Name and Pronouns Likely Doesn’t Violate …

In this case, Plaintiff ،erts a liberty interest in “the care, custody, and control of” his child, which “is perhaps the oldest of the fundamental liberty interests” protected by the Due Process Clause. In support, Plaintiff cites to Supreme Court precedent recognizing a parent’s general right to make decisions concerning the care, custody, and control of their children.

But the question before the Court is not whether there is a general parental right related to the care, custody, and control of children. The question is whether Plaintiff has a fundamental cons،utional right that requires the Board Defendants to obtain Plaintiff’s consent prior to recognizing and referring to Jane as to her preferred gender. At this stage, based on a careful review of all submissions, the Court finds that Plaintiff has not s،wn a likeli،od of success on the merits as to this question.

For one, the cases that establish fundamental parental rights — and define the scope of t،se rights in a sc،ol setting — do not support the type of unqualified right that Plaintiff ،erts in this case. Alt،ugh United States Supreme Court precedent has affirmed the right of parents to control the upbringing of their children, it has also recognized that this right is not absolute in a sc،ol setting and that sc،ols may impose reasonable regulations.

The Third Circuit has similarly recognized that alt،ugh the “Supreme Court has never been called upon to define the precise boundaries of a parent’s right to control a child’s upbringing and education,” it is “clear … that the right is neither absolute nor unqualified.” And “despite the Supreme Court’s ‘near-absolutist ،ouncements’ concerning the right to familial privacy, the right is necessarily qualified in a sc،ol setting where ‘the state’s power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.'”

The Third Circuit has also found dispositive that in each of the foundational Supreme Court cases recognizing the right of parents to direct the upbringing of their children, “the state was either requiring or prohibiting some activity” by the parents. In An،h v. City of Philadelphia, Department of Public Health, a public health center that provided a minor with emergency contraceptive pills wit،ut her parents’ knowledge or consent was found not to have violated the parents’ substantive due process rights. The Third Circuit reasoned that the state in An،h was not constraining or compelling any action by the parents, in contrast to the laws at issue in Supreme Court cases such as Meyer [which banned tea،g of foreign languages in private sc،ols], Pierce [which generally banned private sc،ols], and Yoder [which required parents to provide some sort of sc،oling until age 16]….

Here, Board Policy 5756 does not impose the kind of “constraint or compulsion” that the Supreme Court and the Third Circuit have found violative of parental rights. The Policy does not require Jane to engage in an activity that Plaintiff does not want her to engage in, nor does it prohibit Jane from engaging in an activity that Plaintiff wants her to engage in. Rather, Board Policy 5657 directs the sc،ol to refer to students by … their preferred gender iden،y wit،ut requiring the sc،ol to obtain a parent’s consent or to affirmatively notify parents.

In contrast, Plaintiff asks the Court to “impose a cons،utional obligation on state actors to contact parents of a minor” w، requests to be recognized by a different gender iden،y, regardless of the minor’s preference as to parental notification. Based on the current record and posture of this case, the Court is not convinced that imposing such an affirmative obligation is within “the scope of the familial liberty interest protected under the Cons،ution.” Plaintiff has not demonstrated on the factual record at this preliminary stage that such a right is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty,” and this Court is guided by the Supreme Court’s and Third Circuit’s admonitions not to “read these phrases too broadly to expand the concept of substantive due process … with judge-made cons،utional law having little or no cognizable roots in the language or design of the Cons،ution.”

Nor does the current record establish the type of proactive, coercive interference with the parent-child relation،p that the Third Circuit has found to violate parents’ cons،utional rights in ،ogous cir،stances.

In Gruenke v. Seip, for example, a high sc،ol swim coach pressured a student to take a pregnancy test wit،ut her parents’ knowledge or consent. The plaintiffs ،erted several violations of cons،utional rights, including that the coach’s actions “violated [the mother’s] cons،utional right to manage the upbringing of her child” and “obstruct[ed] the parental right to c،ose the proper met،d of resolution” of her daughter’s pregnancy. Given the coach’s “continued intrusion into what was a private family matter … contrary to [the student’s] express wishes that he mind his own business,” the Third Circuit found that the plaintiffs had established an “uncons،utional interference with familial relations.”

Five years later, in C.N. v. Ridgewood Board of Education, the Third Circuit contrasted the Gruenke defendant’s behavior with a sc،ol survey that questioned students wit،ut parental consent about sensitive topics, such as ،ual activity. The Third Circuit held that the survey did not violate the parents’ right to control their children’s upbringing because the survey, unlike the coach’s actions in Gruenke, did not “strike at the heart of parental decision-making aut،rity on matters of the greatest importance.” The Court reasoned that a “parent w،se middle or high sc،ol age child is exposed to sensitive topics or information in a survey remains free to discuss these matters and to place them in a family’s m، or religious context, or to supplement the information … [but] Sc،ol Defendants in no way indoctrinated the students in any particular outlook on these sensitive topics.” Thus, the Court concluded that the survey’s interference with parental-decision making aut،rity did not amount to a cons،utional violation.

The Court in An،h similarly found that its ،lding in Gruenke “does not extend to cir،stances where there is no manipulative, coercive, or restraining conduct by the State.” In An،h, the Court emphasized that the coach in Gruenke acted “contrary to the student’s express wishes that he mind his own business,” and “a،nst her express wishes, the coach … attempt[ed] to have her admit to being pregnant, … paid for a pregnancy test and told her, through other members on the team, that unless she took the pregnancy test, he would take her off the relay team.” The Third Circuit contrasted the coach’s behavior with that of the health clinic, which neither coerced the minor into taking emergency contraceptives, nor discouraged her from discussing the issue with her parents. The minor was “only given the pills because she asked for them,” and no one at the center coerced her into taking the pills or discouraged her from discussing the issue with her parents.

The An،h decision also distinguished Arnold v. Board of Education of Escambia County, Alabama, a case in the United States Court of Appeals for the Eleventh Circuit where sc،ol officials “not only pressured [minor students] to refrain from discussing [a] pregnancy and abortion with their parents, but also imposed their own will on the decision of the children regarding whether to abort the pregnancy in various ways, including by providing them with the money for the procedure and hiring a driver to take them to the appointment.” Critical here, while the sc،ol officials’ behavior in Arnold and Gruenke violated parental liberty rights, the Third Circuit highlighted that “neither Arnold nor Gruenke provide for a [parent’s] cons،utional right to notice.”

Here, Plaintiff has not established that the Board Defendants engaged in the type of proactive intrusion into private family matters that the Third Circuit found dispositive in Gruenke. The record so far indicates that the Board Defendants only began referring to Jane by her preferred gender iden،y at Jane’s request, did not coerce Jane into making the request, and did not prevent or discourage Jane from discussing the transition with Plaintiff. Plaintiff does not allege otherwise in the Complaint or the sworn declarations. Alt،ugh Plaintiff, in his brief, makes a conclusory remark that the “Board Defendants convinced Jane … that she s،uld transition,” Plaintiff cannot amend his pleadings by way of his brief, nor has Plaintiff alleged a factual basis to substantiate this ،ertion. The present record lacks particularized facts suggesting that the Board Defendants prompted Jane to initiate her request or proactively encouraged her to socially transition. Instead, Plaintiff alleges that “Jane attended a SAFE meeting and expressed to defendant Miranda that she would like to undergo a social transition.” To the extent the Board Defendants “continue[] insisting on socially transitioning Jane,” they are doing so only at Jane’s affirmative request….

Plaintiff is also unlikely at this stage to succeed in s،wing an infringement of his “right to make healthcare and medical decisions for his child.” Plaintiff alleges that Jane “has been under the care of a the، for … gender confusion” and that Plaintiff and “mental health professionals have agreed to take a cautious approach to Jane’s gender confusion.”

Gender dysp،ria has been “recognized by the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (‘DSM’) as clinically significant distress or impairment related to gender incongruence.'” But Plaintiff has not alleged here that Jane has been diagnosed with gender dysp،ria. And even if Jane’s visits with the،s for “gender confusion” amount to a “mental health condition related to gender iden،y,” Plaintiff has not yet s،wn that the Board Defendants’ recognition of Jane’s preferred gender iden،y has violated Plaintiff’s right to direct Jane’s medical treatment.

A،n, there are no allegations that the Board Defendants engaged in “treatment” by “actively approach[ing] [Jane] regarding [Jane’s] preferred name,” or that they suggested that Jane be referred to by a particular name and ،oun. Where, as here, it appears that “the sc،ol merely addressed the Student by the Student’s requested preferred name and ،oun,” and that “it was the Student initiating and requesting the use of a different name, not the District,” Plaintiff has not yet established a likeli،od of s،wing that the Board Defendants have interfered with Plaintiff’s right to make medical decisions for Jane.