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A Maine mother's lawsuit over her child's gender transition highlights tension between student protections and parental rights

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Leroy N. Soetoro

Apr 23, 2023, 2:26:50 PM4/23/23

Amber Lavigne of Newcastle, Maine, was helping clean her 13-year-old
child’s room in December when she discovered a chest binder among her
teenager’s possessions. Lavigne was shocked to learn the chest binder — a
compression garment typically worn by transgender and gender-nonconforming
people to flatten their breasts — was a gift from a school social worker,
and that her child had been going by a different name and pronouns while
at school.

Lavigne, who said she was never informed about the chest binder or these
social changes by her child’s school, filed a lawsuit in federal court
last week challenging the Maine public school’s policy of allowing
students to express their gender identity without notifying students’
parents. Lavigne’s suit is the latest legal challenge in New England over
schools’ ability to protect the privacy and safety of transgender and
gender-nonconforming students and their parents’ right to know.

Last April, four parents in Ludlow, Mass., sued the local school committee
and several school officials claiming Ludlow Public Schools’ policy
affirming their transgender students’ identities violated their
constitutional rights as parents. A federal judge dismissed the parents’
lawsuit in December, citing a 2012 anti-discrimination law and stating
parents don’t have the right to dictate how schools educate their
children; two of the parents have since filed an appeal. A similar lawsuit
is pending before the New Hampshire Supreme Court on appeal from a lower
court ruling which upheld the Manchester School District’s policy to keep
confidential students’ transgender identity.

Republican lawmakers across the country, meanwhile, have introduced
hundreds of bills this year aimed at curtailing the rights of transgender
people. A “parental bill of rights” was narrowly sidelined in the New
Hampshire House last month that would have forced educators to tell
inquiring parents if their child was using a different name or set of
pronouns. House Republicans last month also approved broad parental rights
legislation that outlines what rights parents have in their children’s

Advocates for transgender students say public schools are required to
provide all students an equal education, regardless of gender identity,
under state and federal law, and maintain safe and supportive learning
environments. Forcing schools to disclose students’ transgender status to
their parents, they argue, would not only violate their privacy rights,
but jeopardize their ability to learn.

“Public schools have an obligation to serve everyone and to meet every
student where they are,” said Chris Erchul, an attorney for GLBTQ Legal
Advocates & Defenders (GLAD) in Boston, who filed friend-of-the-court
briefs in support of the schools in the Ludlow and Manchester cases. “In
order to do that effectively, you have to create an environment where
those students are free to to learn, and that means that they’re respected
for who they are, that they’re treated with dignity, and that they’re able
to go through the school day free from discrimination.”

“I don’t think anyone disputes that parents are an essential part of what
makes a student successful in school,” Erchul added. But these lawsuits
“are asking courts to impose rigid rules on schools such that they can’t
have the flexibility to meet the needs of individual students.”

Lavigne’s lawsuit contends that Great Salt Bay Community School, where her
child was a student, violated Lavigne’s “fundamental constitutional right
to control and direct the care, custody, education, upbringing, and
healthcare decisions of her children,” as protected by the due process
clause of the 14th Amendment.

When Lavigne discovered her child had been using a chest binder, along
with a new name and pronouns, she brought her concerns to the principal of
Great Salt Bay Community School and the superintendent of Central Lincoln
County School System. Lavigne was told no school policy had been violated.
In 2019, the lawsuit states, the school board adopted anti-discrimination
guidelines for transgender students that do not mandate parental
notification or involvement.

Lavigne said she pulled her child out of Great Salt Bay Community School
and started homeschooling as a result.

“Our issue with [the school’s guidelines] — and I think the constitutional
issue with them from the 14th Amendment’s perspective — is that the
guidelines allow teachers and other school officials to make these sort of
decisions without any sort of consultation or even simply informing the
parents,” said Adam Shelton, an attorney for the Arizona-based Goldwater
Institute, a conservative think-tank and lead counsel on Lavigne’s case.
“If the school is being able to make these decisions ... parents aren’t
able to adequately control and direct the education, upbringing and health
care decisions of their children.”

The Goldwater Institute declined to make Lavigne available for an
interview. Lynsey Johnston, superintendent of Central Lincoln County
School System, did not respond to a request for comment.

Although similar lawsuits have come before judges in other states,
including Iowa, Wisconsin, and Virginia, none so far have prevailed.
Erchul said these lawsuits are still worrisome if these parents
successfully persuade judges because schools could lose their flexibility
to develop their own curriculum and policies. They could also foster
cultures of “surveillance and reporting” at schools, leading students to
no longer trust teachers and staff, he said.

Since 2012, the Massachusetts Department of Elementary and Secondary
Education has adopted guidance for advising schools how to respect
students’ gender identity in accordance with the state’s anti-
discrimination laws. DESE’s guidelines require schools to keep information
related to students’ gender identity or transition confidential, including
from parents, except in limited circumstances. School officials, for
example, are legally required to warn families if they have reason to
believe their children pose a danger to themselves or others.

Kimm Topping, manager of the state’s Safe Schools Program for LGBTQ
Students, which developed DESE’s gender identity guidelines, said these
guidelines are intended to help students communicate changes in their
gender identity to their families with support from school staff.

“If the educators and the professionals determine that there’s any
concerns around safety for the child — if there is homophobia and
transphobia at home — they’re going to want to be more mindful and careful
with that process,” Topping said. “We really believe that anyone can move
along in their acceptance and we’ve seen that happen with so many parents
and families. So it’s not about avoiding that at all.”

Bob Bardwell, executive director of the Massachusetts School Counselors
Association, agreed.

“If you have a good relationship with a family and you can have that
conversation, obviously, you prefer the student to divulge, but sometimes
that’s not possible,” he said. “For some families, it would not go well,
and it’s scary for a young person who’s trying to figure stuff out and
doesn’t even know what their feelings mean or what they’re going through.”

Topping said the Safe Schools Program is currently discussing how to
revise the guidelines and provide additional clarification for supporting
nonbinary students, a growing cohort in Massachusetts schools. According
to the Views of Climate and Learning survey, administered as part of the
MCAS, nearly 240 students statewide identified as nonbinary last year, up
from 102 students in 2021.

“I think there’s a lot of increased awareness,” Topping said about the
rise in nonbinary students. “Students know that they can openly identify
as nonbinary and ... they feel safe and comfortable to be able to do that
at school.”

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