by Margot Cleveland · August 30, 2017
Last week brought news of three troubling incidents entangling children as young as five in the ever-sprawling transgender agenda. First, as The Federalist’s Joy Pullmann detailed, a California charter school, Rocklin Academy, began the school year with the kindergarten teacher reading students a book about transgenderism.
After story-time ended, a male classmate suffering from gender dysphoria changed clothing and reappeared in a “gender reveal” as his “real” self—a “girl.” Parents only learned of the “lesson” when their confused and upset five-year-olds returned home that day. The parents showed up in force at their school board meeting to chastise the administrators for failing to inform them of the planned events or offer them the opportunity to opt their children out.
A few days after this news broke, Rod Dreher shared details of a similar experience relayed by parents of a Washington DC charter school first grader. Dreher reprinted an email exchange between the school’s principal and student’s parents. The parents reached out after discovering that, without their knowledge, their daughter’s teacher had read the class the transgender picture book “I Am Jazz,” then discussed transgenderism with the young pupils.
‘I Will Not Exempt Any Child’
In the initial email to the principal, one of the parents explained: “[Our daughter] was confused by the discussion and book, and it required me to spend 20 minutes just to undo the odd and incorrect conclusions she drew about transgendered individuals from [the teacher’s] lesson and even the storyline of the book.” The parents expressed their disappointment and sought reassurance that they would be informed ahead of time of future “lessons” so they could opt their first-grader out.
After several back-and-forths and delays, the principal finally responded with a direct denial of their request: “I will not exempt any child from classroom discussions or instruction relating to the topics of gender identity, and ‘marital norms’.” The parents withdrew that child and an older one from the school, but did not want to publicly identify the school or themselves.
The week ended with yet another incident, back at Rocklin Academy: As Todd Starnes reported for Fox News, “during the first week of school…a first grader came across a classmate on the playground. She called the student by his given name – apparently unaware that the boy now identified as a girl.”
Karen England, with Capitol Resource Institute, a California-based public policy group assisting several Rocklin Academy parents, told Starnes: “This innocent little first grader sees a classmate, calls him by the name she knew him last year and the boy reports it to a teacher. The little girl gets in trouble on the playground and then gets called out of class to the principal’s office.” According to the Washington Times, “The little girl was told ‘you can’t do that, his name is this name,’ and ‘you need to call him a “her.”’
After an hour-long “investigation,” the principal determined the first grader had not bullied the transgender child by calling him by his birth name and she was not punished. But she went home from school crying, telling her mom she “got in trouble at school today.” The girl’s mother immediately called the school and “was told that whenever there is a pronoun mishap with this biological boy who now claims to be a girl—the school must investigate,” according to Starnes’ article.
What Are Parents’ Options?
With these stories in the news, parents understandably wonder what, if any, rights they have to protect their children from being taught in school that boys can become girls, or girls can turn into boys; and from being investigated or punished for “misgendering” a child when using the biologically correct pronoun for a child suffering from gender-dysphoria.
There is much to be written on this topic. The initial issue of import, though, concerns whether parents have the right to opt their child out of school lessons, discussions, or coverage of transgenderism or “gender identity.” Here are some preliminary thoughts on this question based on my current academic research for a work-in-progress article tentatively titled “Parental Rights, Free Speech, and Religious Freedom in K-12 Public Schools in the Transgender Era.”
Whether parents will have a right to opt their children out of “gender identity” lessons depends on the governing provisions of state law. Every state regulates public education, and in most states, parents may opt their children out of “sex-education” classes. Whether a discussion of “gender identity” and “transgenderism” would qualify as “sex education” depends on the specific statute.
Most States Have No Opt-Out Laws
My initial research indicates that the various statutory definitions of “sex education” contained in opt-out provisions focus on sexual reproduction and thus would not cover classroom discussions of gender identity. Further, some states, such as California, expressly provide that “gender identity” is not subject to the statutory opt-out provisions available to parents for comprehensive sex education.
At the other end of the spectrum are laws, such the law in New Hampshire, which allows parents to opt their children out of any specific course material that families find objectionable; parents, though, must pay for other instruction, as necessary, to meet the mandates of state law.
In the middle are states that do not provide for a right to opt-out of class coverage of gender identity, but also do not prohibit local school boards or individual schools from offering parents that choice. However, parents should recognize that if a transgender child attends the school, lawyers representing that child will likely demand that to protect the child from bullying, the school must not offer an opt-out option. Schools are extremely likely to comply with such legal demands.
Closely related is the question of whether a school will notify parents of coverage of gender-identity issues in the classroom. Most states require schools to provide parents notice only for curriculum discussions related to “sex education.” But schools are generally not prohibited from notifying parents of an upcoming discussion or event that is potentially controversial. A school, thus, may inform parents of an upcoming gender-identity discussion; however, as the examples above illustrate, there is no guarantee that parents will learn of the event before it transpires and if lawyers are involved, they may attempt to prevent the schools from providing notice.
Nonetheless, most states have passed statutes granting parents the right to review curriculum material. Prudent parents should consider asking to review any curriculum involving gender identity or transgenderism.
Legal Precedent Gives Parents No Opt-Out Rights
If the state’s education code does not provide an opt-out provision for discussions of gender-identity, the question then becomes whether there is a constitutional or other statutory opt-out right. Given the current landscape of the law, the most likely answer is “no.”
This conclusion may come as a shock to most parents, given the Supreme Court’s trilogy of cases establishing the constitutional dimension of parental rights. In Meyer v. Nebraska, the Supreme Court held the liberty interest protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”
In Pierce v. Society of Sisters, the Supreme Court reiterated that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” Then in Prince v. Massachusetts, the Supreme Court proclaimed: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
While the Supreme Court has made clear parents possess a constitutional right to guide the upbringing and education of their children, that right has never been extended to provide parents a right to opt children out of public school curriculum. Rather, two federal appellate courts have rejected this argument. In Mozert v. Hawkins County Board of Education, the Sixth Circuit held parents did not have a constitutional right to opt their daughter out of a reading curriculum that required students to read stories about telekinetic and magical powers. And in Brown v. Hot, Sexy and Safer Productions, Inc., the First Circuit held parents did not have a constitutional right to opt their son out of an explicit sex education course conducted at his high school.
In rejecting the parents’ claimed opt-out right, the court in Brown explained its reasoning, as follows:
The state does not have the power to ‘standardize its children’ or ‘foster a homogenous people’ by completely foreclosing the opportunity of individuals and groups to choose a different path of education. We do not think, however, that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. We think it is fundamentally different for the state to say to a parent, ‘You can’t teach your child German or send him to a parochial school,’ than for the parent to say to the state, ‘You can’t teach my child subjects that are morally offensive to me.’ The first instance involves the state proscribing parents from educating their children, while the second involves parents prescribing what the state shall teach their children. If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents … do not encompass a broad-based right to restrict the flow of information in the public schools.
Given this precedent, it is unlikely a parent will succeed in arguing for a constitutionally protected parental right to opt children out of gender-identity course work.
Further, while the U.S. Constitution guarantees citizens the right to freely exercise their religion, under Supreme Court precedent (in most circumstances), there is no right to be excused from generally applicable laws. Thus, it is unlikely a court would hold that a family has a right to opt-out of gender identity course material based on their religious beliefs and the First Amendment’s Free Exercise Clause.
Current Religious Freedom Laws Are Too Weak, Also
Finally, while approximately 20 states have adopted statutes protecting religious freedom, to obtain relief under these laws parents would need to prove the school’s curriculum imposes a substantial burden on the exercise of their religious beliefs. Courts will be unlikely to find that merely learning about “gender identity” and “transgenderism” imposes a substantial burden on religion.
Courts will be unlikely to find that merely learning about ‘gender identity’ and ‘transgenderism’ imposes a substantial burden on religion.
The key take-aways, then: There is no constitutional or statutory opt-out right, unless the state education code creates such a right. Only a few states do: New Hampshire, Texas, and Minnesota. However, school boards or individual schools might voluntarily offer parents an opt-out. Schools may also voluntarily inform parents of upcoming coverage of “gender identity,” but it is not required in the majority of states, and trans students’ lawyers fight these accomodations. Most states, though, guarantee parents a right to review the school’s curriculum, upon request.
At this point, if parents wish to shelter their children from the transgender agenda beginning to permeate the public school system, parents’ best choice will be to lobby states for a legislative expansion of the sex-education opt-out provisions, or to push the local school board to provide such a right.
However, parents must decide whether to subject their family to the battle-wounds likely to result from challenging the LGBT agenda. Lobbying either politicians or school board members is time-consuming, usually takes years of a child’s school career and ultimately fails, and in challenging the orthodoxy of transgender activists, families and their young children will likely face vicious public criticism, name-calling, doxxing, and more.
Opting Out of Public Schools Can’t Opt You Out of America
Private education or homeschooling may prove a more attractive alternative. But before making that choice, parents should also keep in mind that if they retreat from this fight, their children will merely face the same dogma later—at college, in the workplace, and in life—and by then, the population at large will have been socially conditioned to unquestioningly accept the gospel of gender-identity.
While their ignorance does not make it right to thrust gender-identity idolatry on our children, compassion should caution against vitriol.
Parents might instead decide to teach their children the truth at home while they continue to receive their formal education through the public-school system. However, parents who choose this option should craft a plan to avoid confrontations in school, keeping in mind that while a school may teach children gender-identity theory, it cannot require them to believe or profess a belief contrary to their faith, or punish them if they refuse to do so (i.e., if they “misgender” the transgendered child). This also presents peer-pressure and contradicting authorities difficulties for children, who are psychologically vulnerable by virtue of their immaturity. A follow-up article will discuss these points in more detail.
No matter which option parents choose, they should keep another point in mind: The school and transgender children and their families are not the enemy. Schools must legally protect children in their care and many state laws specifically include gender identity in their anti-discrimination laws. Families with transgendered children often enlist lawyers and LGBT activists to force schools to teach other students to affirm the dysphoric child’s gender-identity. And schools often believe they must do so, without allowing any student to opt-out, to comply with state and federal regulations.
Further, while some families may push a transgender agenda on their child, most children truly suffer from gender dysphoria and most parents’ sole interest is protecting their children. And most parents have doctors who have told them, as if it were settled science, that the proper treatment is gender affirmation. Most parents also do not know that a majority of children presenting as gender-confused or gender-dysphoric grow up to accept their true sex. While their ignorance does not make it right to thrust gender-identity idolatry on our children, compassion should caution against vitriol against the parents and school administrators, and most definitely against the suffering child.