First Circuit debates whether school must tell parents about child’s gender preferences

BOSTON (CN) — A mother who says a public school violated her constitutional rights by secretly encouraging her 13-year-old child to identify as a boy rather than a girl saw mixed reception in the First Circuit on Wednesday.

Judges continually interrupted lawyers on both sides to pepper them with tough questions during oral argument.

“I’d like to get back to what I was saying, but at this point I have no recollection of what it was,” the school board’s lawyer, Melissa Hewey, admitted at one point.

Amber Lavigne of Damariscotta, Maine, discovered in late 2022 that a school social worker had given her child a chest binder, a compressive garment that covers the chest, and other school employees had been calling the child by a different name and pronouns. She sued the school district in April 2023, but a trial judge dismissed the case in May of this year.

This is the second transgender school case pending before the First Circuit. For more than a year the court has been sitting on a similar case from Ludlow, Massachusetts, that drew amicus briefs from 34 states: 19 supported the parents and 15 backed the school.

In the Ludlow case, the school argued that parents had no right to be told anything about their children, including whether a child was suicidal, had an abortion or was raped. The school had a formal policy of keeping information about a child’s gender preferences from parents and even fired a teacher for violating it.

In Lavigne’s case, however, the school’s formal policy says parents should be involved in gender matters. Lavigne claims the school ignored the written rule and observed an unwritten, de facto policy of withholding information — as shown by the fact that the school board never disciplined anyone who concealed matters from the mother and renewed the social worker’s contract. A group of a dozen states filed an amicus brief in favor of Lavigne.

The First Circuit largely ignored the question of whether such a policy would be unconstitutional, since the appeal concerns whether Lavigne adequately alleged an unwritten policy.

“People get their contract renewed when they haven’t done everything perfectly all the time, right?” U.S. Circuit Judge Seth Aframe asked Lavigne’s lawyer, Adam Shelton. “Are you saying he had to be fired?”

“They renewed his contract unanimously,” Shelton noted. “That, plus the school board saying there was no policy violation here, is ratification” of the school officials’ actions.

But Aframe, a Biden appointee, wasn’t sure. “Why is it more likely than not that there was an unwritten policy versus one guy made a decision and the school board later kind of danced around whether it was proper or not?”

U.S. Circuit Judge Jeffrey Howard pressed Shelton on whether the school had withheld information regarding any other children. Shelton couldn’t point to any.

Howard, a George W. Bush appointee, also noted that the written policy required the school to come up with a plan for dealing with the issue. “What does ‘plan’ mean?” he asked. “Is there anything … that tells us what ‘plan’ meant?”

“Giving someone a chest binder isn’t a plan,” Aframe said.

But Shelton argued that whatever ‘plan’ meant, it applied here. “What was the point of the guidelines if school can treat the child as a different sex?” he asked. “Where would a plan come into effect if not in these circumstances?”

Hewey, the school board lawyer, suggested that the social worker acted properly because state law limits the information gathered from children that a social worker is allowed to reveal. But Shelton said the law applies only to revealing information, not to the social worker’s conduct in providing a chest binder and suggesting that the child not tell the mother about it. Nor does the law apply to other employees such as teachers.

Hewey came in for tough questions as well. Aframe pointed to a prior First Circuit case where a police department withheld helpful information from a criminal defendant and the court said that alone could show an unwritten policy.

The attorney responded that in this case there was an “obvious alternative explanation,” which was that the board thought the policy was violated but it wasn’t serious enough to warrant discipline, and it might have re-hired the social worker simply because the district was “desperate for social workers.”

Aframe also worried that, if Lavigne couldn’t at least proceed with the case and engage in discovery, “it’s hard to get to the key facts, to know what happened behind the scenes” because the school district had all the relevant information.

But “anybody can say that about almost any claim,” Hewey replied.

“This is a tiny community in mid-coast Maine,” she added. “The whole town could likely fit in this courtroom. If this were the policy, everyone would know it.”