WASHINGTON – The Supreme Court on Monday declined to take a case that could have made it easier for parents to fight schools’ efforts to support transgender and nonbinary students.
Three of the court’s six conservatives − Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh − said they would have taken the appeal.
A group of Wisconsin parents argued challenges to gender identity support policies are being dismissed by judges across the country before they can be fully litigated because parents can’t show they’ve been affected.
But the policies usurp parental authority even before they’ve been applied to a particular student, the parents argue. And parents may not always know if a gender identify support plan is being used on their child.
Alito, in a statement explaining why he and Thomas wanted to hear the case, echoed the parents’ concerns. And he said lower courts may be trying to avoid taking on “some particularly contentious constitutional questions” like this one, which he said is of “great and growing national importance.”
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The Eau Claire Area School District of Wisconsin, which is defending its guidelines for ensuring a supportive environment for transgender students, countered that the parents are trying to create a new standard for lawsuits that would allow parents to preemptively challenge any school policy even if it doesn’t apply to them.
The school district’s lawyers said the parents are asking for that “so that lower courts can issue advisory opinions on socially or politically charged issues.”
Other transgender issues before the court
The case was the latest involving transgender issues to reach the Supreme Court, but it won’t be the last.
This month, the justices debated whether states can ban transgender people under the age of 18 from receiving puberty blockers and hormone therapy.
The Supreme Court has yet to decide if it will hear pending appeals to a lower court’s decision that states’ exclusion of gender-affirming care from health plans for employees or for low-income residents is unconstitutional.
And it is also being asked to weigh in on Idaho’s and West Virginia’s efforts to block transgender athletes from participating in girls and women’s sports.
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On the issue of schools’ support for students’ gender identity, the court declined in May to hear a challenge to a plan adopted in Maryland’s largest school district in 2020. That lawsuit had been dismissed by lower courts because none of the parents objecting to the plan said their children were transgender, struggling with gender identity or likely to question their biological gender.
The Wisconsin parents argued the Supreme Court needs to make clear that such policies can be preemptively challenged.
“This Court can right this ship now and establish that federal courts are not so anemic, but can and should protect parental decision-making authority when it is so flagrantly usurped – before children are hurt by such policies,” their lawyers told the Supreme Court.
How the lower court ruled
The template Gender Support Plan prepared by the Eau Claire Area School District in 2022 recognizes that parents may not always be involved in a plan’s creation for a student. School personnel are supposed to check with a student before discussing their transgender status with a parent. But the support plan will be released to parents who request it.
A three-judge panel of the Chicago-based 7th U.S. Circuit Court of Appeals ruled in May that none of the parents challenging the policy “has experienced an actual or imminent injury.”Related gallery (ID: 10918330002)
The parents, Judge Michael Scudder, Jr., wrote, are trying to draw the court into the “complex and often emotional challenges on matters of gender identity, where the right policy recipe is not yet clear and the best answers are sure to come in time – through the experiences of schools, students, and families.”
The court’s role, Scudder continued, “is limited to awaiting concrete disputes between adverse parties.”
This article originally appeared on Milwaukee Journal Sentinel: Supreme Court rejects Wisconsin case on gender identity in schools