Parents fight secret gender transitions of their children from mid-Atlantic to Supreme Court

A New Jersey widower who cannot afford private school is fighting to stop his public school district from treating his gender-confused daughter as a boy against his express wishes, even in its "home education program," and calling child protective services for his resistance. 

Parental rights groups, a prominent transgender child psychologist, a mother whose gender-confused daughter killed herself and more than 20 state attorneys general are among more than a dozen friend-of-the-court briefs supporting widower Christin Heaps against the Delaware Valley Regional High School Board of Education.

While the plumber's lawsuit at the 3rd U.S. Circuit Court of Appeals only affects the mid-Atlantic states for now, Massachusetts parents who already lost in the 1st Circuit are petitioning the Supreme Court to strike down secret social transitions nationwide.

Ludlow Public Schools fired teacher Bonnie Manchester for telling Stephen Foote and Marissa Silvestri the district transitioned their self-described "genderqueer" 11-year-old behind their backs. A federal judge dismissed Manchester's wrongful-termination lawsuit in April, citing the 1st Circuit's ruling upholding the secret transition policy in the parents' lawsuit.

The 1st Circuit contradicted a 25-year-old 3rd Circuit precedent that school districts' authority over students "does not mean ‘displace parents,'" fleshed out five years later in an opinion joined by future Justice Samuel Alito on "actions that strike at the heart of parental decision-making authority on matters of the greatest importance," the petition says.

"The circuits are divided 4–1 over whether nonreligious parents’ rights are limited to the initial enrollment decision," which begs for SCOTUS intervention, the petition says. "Courts disagree over how broadly to define school authority over curriculum and administrative decisions."

Threatened to block her final exams, repeat freshman year

Heaps' case against the New Jersey school district, which otherwise resembles litigation nationwide against secret social transitions of gender-confused students, is notable for its family dynamics, socioeconomic status, school overriding the girl's therapist and its demand that Heaps let teachers socially transition her even at home.

"Jane Doe" lost her mother at age four and has been diagnosed with autism, ADHD, depression and anxiety, Heaps' opening brief says. The girl had been "seeing a therapist for around a year and a half," who was taking "a cautious approach to Jane’s gender confusion given her underlying trauma and psychiatric comorbidities," when she entered high school.

Heaps put the girl in the district's home-instruction program when another parent "incidentally referred to his daughter by a masculine name," revealing months of secret transitioning, but the district did not stop using male pronouns and name for her in virtual lessons.

After the widower sued to stop the district, it threatened to deem Jane "truant" unless she completed assignments "on school premises after school on a 1:1 basis with a staff member," sent child services to Heaps' home to grill him and threatened to block his child from final exams and make her "repeat her freshman year."

U.S. District Judge Georgette Castner, nominated by President Biden, denied a preliminary injunction because Heaps didn't show his daughter is "suffering or diagnosed with a mental health condition related to gender identity" – by then she had abandoned a boy's identity – or that the school "actively encouraged" her to socially transition.

The brief repeatedly invokes the Supreme Court's new Mahmoud ruling against a Maryland school district for not notifying parents of young children, or recognize opt-outs, before it teaches LGBTQ-themed books. Like those plaintiffs, Heaps cannot afford an "adequate substitute" for a public school and risks fines or imprisonment if he doesn't send the girl there.

'Impenetrable labyrinth' of legal precedents 

The Liberty Justice Center's friend-of-the-court brief with child psychologist Erica Anderson, who is transgender and has transitioned many children into opposite-sex identities, emphasizes the debate among mental health practitioners over "how "quickly and under what conditions" confused children should transition.

Research "before the recent trend to quickly transition" found the vast majority of children desist from "gender incongruence" naturally, "whereas some newer studies of youth who have socially transitioned show much higher rates of persistence" and are hence much likelier to medically transition, making parental involvement necessary, the brief says.

Twenty-two state AGs led by Montana, and the Arizona Legislature, challenged Judge Castner's use of the lowest standard of judicial review to consider the policy, mischaracterizing Heaps' claims as "seeking to direct how a public school teaches his child" rather than denying his rights to "make educational and healthcare decisions" for his child.

The Biden nominee wrongly relied on the 3rd Circuit precedent Anspach upholding emergency contraception for a minor without parental knowledge or consent, because SCOTUS in Mahmoud rejected the reasoning in Anspach that government circumvention of parents is "not constraining or compelling any action by the parents," the AGs said.

The Child and Parental Rights Campaign, which is co-counsel in the Ludlow SCOTUS petition, said it has faced "nearly identical" challenges as Heaps to its own litigation against secret social transitioning, namely an "impenetrable labyrinth" of legal precedents on municipal liability and pleading standards including 1978's Monell.

They punish parents for not providing "sufficient factual details to state a plausible claim" but the policies are "purposely withholding information from parents," who cannot "engage in discovery unless they survive the motion to dismiss," the brief says. Lower courts misinterpret Monell to create the "very de facto sovereign immunity for municipalities that Monell rejected.

Facilitating gender transition not like giving a child 'book on brick laying'

Filed Friday, the CPRC petition with the Alliance Defending Freedom on behalf of Foote and Silvestri asks SCOTUS to consider whether "a public school violates parents’ constitutional rights when, without parental knowledge or consent, the school encourages a student to transition to a new 'gender' or participates in that process."

"The First Circuit ignored this Nation’s history and tradition" on parental rights over children's education even in public schools, with "Reconstruction-era courts" upholding "objectionable curricula" opt-outs but lower courts minimizing their rights since SCOTUS banned the compelled recitation of the Pledge of Allegiance in school, they said.

The Boston-based appeals court joined 20-year-old precedents from the 9th, 7th and 6th circuits that gave parents no say in taxpayer-funded education except whether to send their children to public school, and the 9th and 7th that public schools can give students of any age "whatever information" they deem educationally appropriate.

The San Francisco-based 9th Circuit has even excluded parents from any say in "policies about locker-room and restroom access" – such as the sexes dressing and undressing in front of each other – as matters of "school administration," while the 3rd and Atlanta-based 11th Circuit put a tighter leash on what schools can do to students, the petition says.

"This Court has never suggested that parents must show 'coercion' or 'restraint' to establish that a school has violated their right" over their children, yet the 1st Circuit compared the school's facilitation of a gender transition on a "mentally fragile" girl in therapy to claiming that giving a student a "book on brick laying" would force them to become a mason.