Wisconsin Court Orders School District Not to Socially Transition Children Without Parents' Consent

"Kettle Moraine School District is enjoined from allowing or requiring staff to refer to students using a name or pronouns at odds with the student's biological sex, while at school, without express parental consent."

From T.F. v. Kettle Moraine School Dist., decided last week by Judge Michael Maxwell (Wisc. Cir. Ct. Waukesha County) (some numbering omitted):

The Complaint alleges that the Kettle Moraine School District (hereinafter "Kettle Moraine") violated parental rights by adopting a policy to allow, facilitate, and affirm a minor student's request to transition to a different gender identity at school without parental consent and even over the parents' objection….

Findings of Fact

T.F. and B.F. had a daughter ("A.F.") that attended Kettle Moraine Middle School ("KMMS") in the Kettle Moraine School District. A.F. began questioning her gender identity and T.F. and B.F. moved her to a mental health center and that center focused on "affirming" this new gender identity.

A.F. then returned to the school with some parental support for the identity, but T.F. and B.F. ultimately changed course and went to the school informing them they wished to refer to A.F. by her legal name and female pronouns. The District replied by saying they will follow the guidance of A.F. in what pronouns to use, even over parental objections.

In response T.F. and B.F. withdrew A.F. from the District and shortly thereafter A.F. concluded that she did not want to transition genders….

Social transitioning of one's gender is a decision that should usually be preceded by a mental health professional ("MHP") conducting a psychological assessment in order to see the benefits and challenges of such a transition. Social transitioning represents "one of the most difficult psychological changes a person can experience." …

Social transitioning is a "powerful psychotherapeutic intervention" that likely reduces the number of children desisting from their transgender identity and can lead them to using puberty blockers and cross-sex hormones, which carry known risks. Thus, informed consent from the parents must be obtained before socially transitioning a child. Social transitioning without full support of one's parents can result in the child living a double life which can be "psychologically harmful."

There is also no evidence to suggest that socially and/or medically transitioning reduces risk of suicide among individuals experiencing gender dysphoria.

Trained psychotherapists should not drive a wedge between a parent and their child as social transition can only occur with "the support and acceptance of parents/caregivers." Further, "[c]ircumventing, bypassing, or excluding parents from decisions about a social transition undermines the main support structure for a child or adolescent who desperately needs support."

A school facilitated transition without parental consent/buy-in infringes on parents' ability to take a more cautious approach to their child as well as a treatment approach that does not involve immediate transitioning….

Discussion …

This case is not about parents controlling how a school specifically educates its students. This is also not a case about the broader societal debate or implications of transgenderism in our youth or the political movement that supports it.

One of the main rights plaintiffs have suggested this case implicates is the parental decision-making authority, such as making healthcare decisions, which they argue is a fundamental liberty interest that requires passing of strict scrutiny. Defendants seemingly ignore this argument from the Plaintiffs, instead focusing on arguing against a position that the Plaintiffs never took up—which is the right to control how a school educates one's child. Though they do address the parental rights position they say that "no court has expanded the scope of [parental right's] so broadly as to include a right of parents to control what nickname and pronoun school personnel use during the day."

Under Michels v. Lyons (Wis. 2019), parents have fundamental liberty interest in the decisions regarding "care, custody, and control of their children."  The state only has an interest when the child's physical and mental health or welfare is in jeopardy. However, the state's interest if violating a parent's right, must still be narrowly tailored.

Further, "[s]imply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state." A child is not granted the same autonomous rights as adults because "[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments."

Plaintiffs have introduced uncontested expert affidavits explaining that this is a medical issue as they offer insight into transgenderism and how both medical and social conditioning can impact a child's mental health. Of particular importance to note is that both doctors agree that living a "double life" where a child's gender roles are different at home and school, is "inherently psychologically unhealthy" and can undermine existing support structures for that child. Both doctors do note that all professional organizations that have handled these types of scenarios suggest a child receives professional evaluation, but none have said that a school district should continue the process of treating or addressing that child's alternative gender identity without "parental consent and buy-in."

This is undisputedly a medical and healthcare issue—the Defendants put forth no evidence to the contrary. As such, the School District went against the parents' wishes on how to medically treat their child. This directly implicates an infringement against the parental autonomy right to direct the care for their child….

Strict scrutiny requires that a "statute must be narrowly tailored to advance a compelling state interest" and it "is an exacting standard, and it is the rare case in which a law survives it."

Defendant's argue that their actions would survive this because they were narrowly tailored to support a "vulnerable population of students" while also "complying with state and federal laws and guidance for the treatment of transgender and gender non-conforming students." They rely on a federal district court case from Maryland to support this where the court there found that the school district did not need to tell parents if their kids went with different names/pronouns. John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ. (D. Md. 2022).

However, there the court found the fundamental right to be whether parents had a right "to be promptly informed of their child's gender identity." The court also focused on the fact that parents do not have a right to direct their child's education. That court viewed the case as closer to one's where curriculum was challenged.

The Maryland court did not consider the medical implications of such actions in the same way as they are presented before this Court. Further, federal district courts are only persuasive to this Court, and this is coming from one that is not even within this Court's federal circuit.

Kettle Moraine's reliance on attempting to comply with state and federal laws as well as guidance is also unavailing because there is no definitive guidance on this issue from relevant jurisdictions and the federal guidance pertaining to Title IX is, at best, an unsettled question.

Plaintiffs suggest that the District's actions are not narrowly tailored because there are not the necessary procedural protections in place that are necessary to override a parent's choice of how to medically treat their child. This is required as seen in Michels [where] the parent's decision was only overridden after introducing "clear and convincing" evidence. Perhaps the District could introduce clear and convincing evidence in order to supplant a parent's medical judgment, but they certainly cannot do so on a whim in the manner that they did, and they have put forth no evidence—let alone clear and convincing evidence in this case….

This Court has before it what modern society deems a controversial issue—transgenderism involving minors within our schools. Clearly, the law on this issue is still developing across the country and remaining largely unsettled. However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent's right to control the healthcare and medical decisions for their children. The well established case law in that regard is clear—Kettle Moraine can not. The School District abrogated the parental rights of B.F. and T.F. on how to medically treat A.F. when the district decided to socially affirm A.F. at school despite B.F. and T.F. requesting it does not. Through its policy of disregarding parental wishes on a medical or health related decision and with how fast questioning ones gender can arise, P.W. and S.W. are at real risk of being harmed by the current School District policy.

The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents wishes is not permissible and violates fundamental parental rights….

Kettle Moraine School District's policy to enable and affirm a minor student's transition to a different gender identity at school without parental consent violates parents' constitutional right to determine the appropriate medical and healthcare for their children.

Kettle Moraine School District's policy violated T.F.['s] and B.F.['s] constitutional rights as parents to determine the appropriate medical and healthcare for their children.

Kettle Moraine School District is enjoined from allowing or requiring staff to refer to students using a name or pronouns at odds with the student's biological sex, while at school, without express parental consent.