California required school districts to hide students’ gender confusion from parents in written policies and, after it got sued, in teacher training materials it hid from a court. The Supreme Court rejected the Golden State’s claim that its practices balance parental rights with student welfare, granting an emergency application to reinstate a permanent injunction while the case proceeds at the 9th U.S. Circuit Court of Appeals.
Maine’s Great Salt Bay School Board is hoping for better luck before the high court in a challenge to allegedly unwritten policies that contradict its on-the-books parental involvement requirements for gender-confused students.
The district opposes plaintiff Amber Lavigne’s SCOTUS petition to review a 1st Circuit ruling that dismissed her lawsuit due to “obvious alternative explanations” for the social transitioning of her 13-year-old daughter rather than an “unwritten de facto policy,” arguing her allegations were too vague to be heard in court and especially not SCOTUS at this stage.
The mother alleged school staff secretly addressed the girl as a male, a social transition, but also that an in-school social worker gave her chest binders to flatten her breasts, a medical intervention that can cause physical damage, showing its official policy was a ruse.
Lavigne’s lawyers at the Goldwater Institute recently filed their reply, accusing the district of evading the core issue: “the Board can be held liable if it follows an unconstitutional policy” regardless of whether it’s written or not.
Nineteen states led by South Carolina, a conservative think tank and a medical freedom advocacy group are backing Lavigne’s petition, which first went before SCOTUS Feb. 20 with no action. (Justices often review petitions over several meetings before acting on them.)
The 1st Circuit transformed “plausibility pleading” into a “probability requirement” in violation of the SCOTUS precedent Twombly, a recurring problem in lower courts that has produced an “entrenched circuit split,” reads the Manhattan Institute’s friend-of-the-court brief.
This forces plaintiffs across “a wide range of constitutional issues” – among them free speech, economic freedom, property rights and racial discrimination – to “negate lawful explanations” before legal discovery and “invites courts to weigh competing inferences at the pleading stage,” effectively putting a thumb on the scale for defendants, the brief also states.
It will be difficult to review the “substantive question of constitutionally guaranteed parental rights” without first addressing the split on pleading standards, the institute argued.
“The question presented is exceptionally important to the States,” with so-called gender secrecy policies covering over 12 million students in 38 states by Defending Education’s estimate, the GOP attorneys general’s brief says.
Yet the appeals court, which got its first GOP-nominated judge in November, “avoided answering the important constitutional question presented here,” the AGs said.
Their states need “clarity on this question so that legislatures, state boards of education, and local school districts can conform policies to federal law,” the brief says. “Persistent avoidance by lower courts leaves States without binding guidance while disputes proliferate.”
America’s Frontline Doctors, known for its early opposition to COVID-19 orthodoxy, said in a brief focused on the medical issues in the case: “Desistance statistics and the weight of research show that the parental opinions in this case are most likely correct, and the school’s approach is medically contraindicated. This is about saving lives.”
It deemed euphemisms for medicalized gender transitions “intentional distractions” from the reality of a “permanent Frankenstein-esque mutilation of a minor child’s healthy body,” going into gruesome detail about sexual dysfunction and maintenance of constructed genitals.
Such procedures can preemptively sterilize a minor, prevent breastfeeding and cause “permanent and irreversible damage to facial, body and vocal structures,” the brief says. “The majority of both sexes have lifelong anorgasmia.”
