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.

Comments

[Rev. Arthur L. Kirkland]

Today is yet another Transgender Day at the Volokh Conspiracy.

Yesterday was another Muslim Day, as was the day before.

Tomorrow might be another Drag Queen Day, or Racial Slur Day, or Lesbian Day. Or, tomorrow might be another White Grievance or Transgender or Black Crime or Muslim Day.

It is always Poor, Persecuted Conservative White Male Day at the Volokh Conspiracy.

Carry on, clingers.

[Jerry B.]

But as long as you're around, it'll always be Inanity Day.

[Scooter]

LOL, Meat.

Never forget, your Betters are watching and taking notes.

Carry on.

[Martinned]

Yeah, this doesn't seem like something the school should be deciding. Whether the parents should have unfettered authority is, of course, a different matter.

[Jerry B.]

Seems a reasonable decision.

[Rev. Arthur L. Kirkland]

Any chance this decision was issued by a white Republican judge in a white Republican county?

[Scooter]

Any chance you might discuss the actual issue, Meat?

Naw, I didn't think so.

Carry on.

[Roger S]

White Republicans may be the only ones left willing to stand up against the sexual grooming and mutilation of schoolchildren.

[Longtobefree]

An adult who tries to keep sexual secrets from a child's parents is a child molester.

[Nige]

An adult who doesn't know what a 'sexual' secret is a danger to himself an others.

[John F. Carr]

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.

The word "allowing" caught my eye. The school is required to have a policy on use of pronouns, just not the one administrators wanted.

[Brett Bellmore]

This is likely to avoid a scenario where the previous policy of "social transitioning" continues in a more deniable form.

[Social Justice is neither]

I read allowing as meaning "what the teachers choose to do is fine as long as they don't involve the administration and nobody needs to bother to look for non-compliance"

[Nige]

It's an amazing rule. I wonder what the standard is? How is it even enforcable? Each nickname must be officially ratified for its conformity to some arbitrary standard of 'biogical sex?' If Stephen is called Stevie does that conform? If Stephanie is called Steve does that conform? Just pure top-down authoritarian srtanic-panic nonsense.

[JimM47]

This is what caught my eye:

"Kettle Moraine School District is enjoined from allowing ... staff to refer to students using a name or pronouns at odds with the student's biological sex."

Agree or disagree, I understand the argument for why it could violate a constitutional right to parental authority for the government itself to take action against the parent's wishes.

But, in general, you do not have a constitutional right to compel the government to restrain others from acting. I think further analysis is required in order to justify ordering the school to restrain teachers' voluntary speech -- even if, under Pickering, the school would have the authority to do that.

[KenveeB]

If it said "allowing students", then you'd have a point. but they're talking about the district's own employees. How else is the district going to take ANY action except by what they tell their employees to do?

[JimM47]

First, a narrow point: teachers are agents of the state when they are acting within the scope of their employment. At least on its face, this injunction is not limited to teacher speech within the scope of employment, it is ostensibly applicable to all speech on school grounds. The prayer example raised by another commenter shows that not all teacher speech on school grounds counts as state action. See, e.g., Kennedy 142 S.Ct. 2407 (2022).

Second, a broader point: ask yourself, if a random private person calls a child by a name or a pronoun other than the parent’s approved name or pronoun, would you say (1) that this interferes with the parent’s medical decision-making authority, but it is just not by a state actor, or (2) that is it not even a violation of the parent’s rights, it is just a part of the rough and tumble of society that must be tolerated. Absent further analysis, I am inclined to say it is the latter. Systematic, not isolated, action is necessary to transform (arguably) name-calling into medical decision-making. And, if that is true, it seems to me that the injury from a school having no policy or practice regarding names/pronouns is similar to the injury a parent suffers at the hands of private individuals — i.e. it is different in kind from the injury caused by affirmatively having a policy or practice.

[Social Justice is neither]

I think you'd have a very different opinion on what can be compelled if the teacher was using class time and attention to lead prayer groups rather than pushing gender ideology on kids.

[Brett Bellmore]

The teachers are not relevantly "others", in this case, they're the government's own agents.

[Ruqt]

Are you supporting staff's right to counsel students to change religions, to counsel a gay student accepted by his parents to go straight? Can each teacher choose his/her/its own beliefs to transmit?

[JimM47]

Public school teachers say all sorts of things I disapprove of. Many of those things do not implicate a parent's constitutional right to parental decision-making. They must be challenged in the political process, rather than in court, because they do not cross that line. I do not have to support something to be skeptical of a court's line-drawing and to ask for more analysis.

[Ben_]

"As a 3rd grade teacher, I often talk about Jesus with my students, they are so excited to hear about my faith. They point to the cross on wall and ask me about the resurrection.

Some have gotten baptized in the sink, as long as they don’t tell their parents. It’s our secret."

https://x.com/carpedonktum/status/1646376957637001221

[WuzYoungOnceToo]

But, in general, you do not have a constitutional right to compel the government to restrain others from acting.

You do realize that "staff" refers to employees of the public school, who are therefore agents of that government...right?

[MatthewSlyfield]

"But, in general, you do not have a constitutional right to compel the government to restrain others from acting. "

You do when the others in question are government employees.

[Lee Moore]

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

That caught my eye. Was the judge (a) factually correct, or (b) factually incorrect, but legally correct on the grounds that the school failed to dig up evidence that exists (c) factually and legally incorrect or (d) something else.

I'm confident that Josh can probably help us here.

[Jacob Grimes]

It was from an uncontested expert affidavit, so it was accepted as true for the purposes of summary judgment.

I don't really see how it's relevant, anyway. Maybe it was emphasized in the briefs.

[Brett Bellmore]

It's also factually correct, which is probably why the school couldn't produce evidence to the contrary.

[Josh R]

This literature review concludes there is evidence, even though methodological concerns strongly suggest further study.

Two things struck me about the decision: 1) the use of the word "transgenderism," which I believe is a pejorative implying that being transgender is not real but rather an ideology aimed at convincing people it is real, and 2) requiring express parental consent before using the student's preferred pronoun.

The former raises a concern that the judge is acting politically (including perhaps the statement on suicides) rather than based on the law. The latter could be a manifestation of the judge's politics. I can see how a policy that required using the student's preferred pronoun against the wishes of the parents could violate the parents' fundamental rights. And, I can see the wisdom of a policy of parental notification (I can also the wisdom in not having that policy). But, I can't see a fundamental right in parental notification (which is what would be required to obtain express consent).

[SimonP]

Right. The decision to issue an injunction against the policy, rather than as applied to this particular student (who had withdrawn from school and apparently rendered the claim moot) also tips the judge's hand.

I had expected this to be hooked onto some state legislation or regulation, but no - made up from whole cloth. Apparently the judge decided to impose a policy of mandatory "outing" of kids who come out as trans in school, which he found somewhere within a parental right to direct the healthcare treatment of their children.

Just as the law is supposedly "colorblind," I suppose it must also be "cisgender."

[David Nieporent]

The word 'outing' is a bizarre one in a context in which the whole point is that the activity is open and public. Normally, if one doesn't want someone to know something about oneself, one keeps that fact to oneself, or at to a small group of people.

[Randal]

The scenario is that a kid comes out to a few friends at school, but then a teacher becomes aware if it through whatever means.

I guess the best option there is for the teacher to try really really hard to turn a blind eye.

[Davy C]

But the teacher still doesn't have to "out" them. Nothing requires the teacher to go to the parents and say "hey, your kid is trans". (Nothing prevents the teacher from doing so either.)

[David Nieporent]

That scenario might make sense in the context of sexuality; a student — any person — saying s/he's gay is information that can be confined to a small number of people, and if the person isn't dating there's no reason anyone would find out, or need to know, about it. And there's no action the school would ever need to take about that fact, one way or the other.

But the entire point of the trans issue is that the student wants to hold him/herself out as, and be treated as, a member of the opposite sex. If s/he doesn't want those things, there's nothing for the school to do one way or the other. But if s/he does want those things, then everyone knows and the school needs to act, one way or the other.

[Nige]

No, the point is that the child wants or needs or has found a safe space where they can be out, and that safe space may not, as of yet, extend to their home, and that could be because they just aren't ready yet, or they're genuinely in fear, and everything in between.

[SimonP]

I see you're opting for "willfully obtuse" today.

[Savagely Average]

Thanks very much for that link - very interesting stuff.

My take on that literature review is different than yours. What I see is that, although a majority of the reviewed studies' authors *claimed* to find a correlation between gender-affirming treatments and reduced suicidality, in most cases the relationship either did not reach statistical significance or even if it did showed only a very weak correlation.

Also, two of the studies showed a correlation between gender-affirming care and *increased* suicidality - though the authors of the review point out that those studies suffered from the same methodological limitations as the other studies so the results are similarly questionable.

I also thought it was interesting that the review authors noted the need for long-term follow-up given that gender-affirming care may induce a "honeymoon period" which dissipates over time.

[Josh R]

The judge said "there was no evidence to suggest."

[Rossami]

I remember when some of those studies were first published. I agree with the authors of the literature review you cite that the underlying methodologies were utterly inadequate to support their conclusions. If anything, the review authors were too kind in their assessment of the prior literature.

Given the state of the evidence, the judge probably should have said that "there was no credible evidence to suggest..." rather than "no evidence".
But given that it was an uncontested affidavit, it was also procedurally correct to say that "there was no evidence [presented in this case] to suggest..." - Lee's option b above.

[Josh R]

If anything, the review authors were too kind in their assessment of the prior literature.

Indeed, the authors did not conclude what you claim they concluded (or perhaps only what you concluded), including there is no credible evidence.

[Savagely Average]

Do we know the district provided the Court with any of those studies? Judge can only go with what the parties give him. If there was evidence to support its position and the district didn't give it to the Court that's on the district.

[Josh R]

Could be. Facts make a difference. I’m just noting my skepticism based on the totally of what the judge wrote.

[Savagely Average]

The rationale for parental consent is that social transition is an intervention to address a medical issue. Therefore, by affirming the child’s stated preference to transition without the parents’ agreement or knowledge the school is usurping the parents’ fundamental right to direct the medical treatment of their child.

Which part of that do you disagree with? Do you not think there is a fundamental right of parents to direct their children's medical treatment? Or do you not think that the school's actions in this case interfered with that right?

[SimonP]

The school wasn't providing gender affirming care, counseling, hormones, or any of that. It was simply agreeing to go by the student's chosen name and pronouns. It therefore wasn't interfering with the parental right to direct the medical treatment of their children.

Imagine a judicial opinion like this: AF's parents have a fundamental right to direct the medical care of AF. AF reports that she's been raped by her older brother and seeks counseling and medical care with the school's staff. The school provides this counseling and care without getting the express approval of the parents. The parents would prefer to manage matters within the family, do not believe that AF requires counseling, do not want AF to have access to emergency contraception or abortion services, and so object to the school's providing this care. Any school policy that interferes with the parents' right to manage AF's healthcare requires strict scrutiny, yada yada yada, and so therefore the school is enjoined from providing counseling and medical care to students who claim to have been raped.

Does that make any sense?

[Rossami]

You are wrong in your starting premise. As the opinion (and the supporting experts) explain clearly, social transitioning (that is, agreeing to go by the person's chosen name and pronouns) is in fact a part of a successful medical process and therefore is part of the medical treatment.

And, yes, schools are (and should be) prohibited from providing counseling and medical care over the parents' objections even in the event of rape. The school's proper recourse in such a situation is to report the allegation to Child Protective Services (that is, to law enforcement) who are the competent authorities to start proceedings to revoke parental rights. Schools may not do that on their own. A school policy such as you describe which usurps parental authority without due process would indeed be subject to strict scrutiny and would fail.

[SimonP]

As the opinion (and the supporting experts) explain clearly, social transitioning (that is, agreeing to go by the person’s chosen name and pronouns) is in fact a part of a successful medical process and therefore is part of the medical treatment.

I'm not obliged to take the judge's bad-faith stretching of the facts at face value. I'm saying the judge is wrong about this. And your inference is invalid.

And, yes, schools are (and should be) prohibited from providing counseling and medical care over the parents’ objections even in the event of rape.

I'm always surprised by how often you retards embrace the absurd.

[TwelveInchPianist]

Parents get to direct the medical care of their children until there is due process to abrogate parental rights. What's absurd about that?

Perhaps you're the retard.

[Rossami]

You call it "the judge’s bad-faith stretching of the facts" while ignoring that it was the doctors who presented that testimony - you know, the experts who we are all supposed to be deferring to. You may disagree with those experts but it's not "bad-faith" when the judge listens to them, especially when the other side presented zero contradictory evidence.

[Nige]

'A school policy such as you describe which usurps parental authority without due process would indeed be subject to strict scrutiny and would fail.'

A school policy not founded on the principles of child protection is indefensible - and one such principle is that children who ask that parents' not be told if they come out must be respected.

[Rossami]

Who gets to decide what counts as the child's appropriate protection?

In our society, it's the parents until and unless their parental rights have been revoked - a process that (again, in the US but not necessarily elsewhere) requires due process. Neither you nor me nor the school get to arbitrarily substitute our judgement for the parents'.

[Nige]

Well, you consult experts in the area of child protection and formulate policies, or adopt policies recommended by chilpd protection experts.

'requires due process'

A child asking to be referred to by a pronoun is not a court of law.

'Neither you nor me nor the school get to arbitrarily substitute our judgement for the parents’.'

Nobody has to substitute anything, just follow appropriate child protection policy.

[Savagely Average]

OK — so I get that you disagree that with the basic premise that complying with a child’s stated desire to change name and pronoun usage is social transitioning at all. Thus, you disagree that the district’s actions interfered with a course of medical treatment. I mean, I think it’s pretty disingenuous to claim that changing to a different name and pronoun “isn’t social transitioning.” Names and pronouns are very significant parts of your social identity and changing them is a huge step towards a social transition that may help induce a child not to desist in a transgender identity.

Regarding your example, I think it’s pretty far from the situation here. If the child’s brother is raping her and the parents are looking the other way and doing nothing then to me that’s an abusive home environment. In that situation state actors are rightly empowered to step in and override the parents’ wishes.

The question, then, is: Does parents’ not going along with the child’s expressed wish to socially transition create an abusive home environment that empowers state actors to override the parents similar to your example above? It sounds like you and I would have different answers to that question.

[SimonP]

Regarding your example, I think it’s pretty far from the situation here.

When all else fails, fight the hypothetical.

The question isn't how close or far it is. The question is whether the parents have a fundamental right to direct the medical care their children receive, such that any school policy about getting involved in the "medical care" or counseling of a student without a parent's express consent requires a degree of judicial scrutiny that likely would result in tossing the policy.

If you're saying that they do, but that liberty interest can be overridden by the school when necessary for the student's well-being, then you have to explain why acknowledging a student's chosen gender identity doesn't so qualify.

Personally, while I appreciate that parents have a liberty interest in seeing after the medical care of their children, children also have their own liberty interests that need to be taken into account, and schools act in loco parentis while the student is on school premises. I would subject the school's policy to something more like a "rational basis" review, and would conclude that it is rationally calculated to serve the best interests of the child, without overstepping into the realm of providing therapeutic care on transitioning, hormones or puberty blockers, and the like.

[Savagely Average]

You pretty much state my position accurately: Parents have a fundamental interest in directing the child's medical care. But, like many fundamental rights, this is not absolute and can be overridden in some cases, like where the parents are making choices about care that seriously endanger the child.

Here's where you're mistaken: "If you’re saying that they do, but that liberty interest can be overridden by the school when necessary for the student’s well-being, then you have to explain why acknowledging a student’s chosen gender identity doesn’t so qualify."

That's not how fundamental liberty interests work. The liberty interest can be overridden if someone shows the parents' actions *do* endanger the child. It's not for the parents to prove that their actions *don't* endanger the child.

[SimonP]

The parents' actions, in this case, being to "de-transition" their child against the child's apparent consent, and to withdraw their child from the school when the school's affirming environment prevents them from fully doing so.

[Savagely Average]

Correct. To override you need an evidentiary showing that that conduct endangers the child. It's not self-evident that it does.

[SimonP]

Say it's the atheist parents of a child who decides they want to become a practicing Christian. The parents are supportive at first, but ultimately decide that they don't want their child to hold Christian beliefs or engage in Christian practices. They specifically direct the teacher's students not to encourage the child's prayer activities, to take away any Bible that the child might be reading in class, to bar the child from participating in Christian school groups, etc. When the school fails to do this, they withdraw their child from the school, cutting them off from any friends or social network that might have supported their conversion.

Not "self-evidently harmful?"

[Nige]

'Thus, you disagree that the district’s actions interfered with a course of medical treatment'

It's not a medical treatment.

[Savagely Average]

It's an intense psychosocial intervention. Whether it amounts to a medical treatment is debatable. But it certainly interferes with the parents' overall medical treatment of the child's psychological symptoms, which is what I said.

[Nige]

It's not an intervention at all. It is merely accepting a child's wishes in the matter of their name.

[Savagely Average]

I think we're back in the "Changing names and pronouns is part of social transitioning which is a major psychosocial intervention" versus "it's not an intervention, it's just being polite" space and we're just not going to agree.

[Nige]

There is no intervention. If someone tells a child they have a new name and a new pronoun, that is an intervention. If a child says 'call me this please,' it's the kid asking to be treated with respect.

[Savagely Average]

Yeah, I don't agree that changing names and pronouns is just "politeness" or "respect." It's more than that, and that the request to socially transition came from the kid doesn't make it less of an intervention. If your 8-year-old kid asked to drive the school bus and the principal gave him the keys, you'd say the school intervened.

[Nige]

No, changing names is a choice, repecting that choice is politeness. Yes I would say that, but nobody is giving the kid the keys to changing ther name, they're doing it themselves.

[Josh R]

Does the fundamental right to direct your child's medical treatment constitutionally require the school to call the parents to get express permission before putting a bandage on a cut? I don't think so.

[Savagely Average]

I don't think so either.

How is that relevant to this situation?

[Josh R]

Using the student’s preferred pronoun is analogous to putting a bandage on a cut (despite WuzYoung’s and Slyfield’s objections). The judge held the parents must give their express consent before the bandage goes on.

Again, it might be a good policy to inform the parents the bandage is on. But, the constitution doesn't require it.

[Nige]

It's not even that.

[Savagely Average]

If your position is really that altering one's name and pronouns is no big deal, then I respectfully disagree. It's a fundamental change to your social identity, how you interact with others and how you expect others to interact with you. It's a big deal. For proof, most supporters of trans rights consider "deadnaming" a form of abusive hate speech. If name and pronoun usage isn't that big a deal why does deadnaming matter?

[Nige]

No. It's just not medical. All children develop social identities outside their homes, it's only one group that require policing, but that's the same group that are most vulnerable, so any official policy must be in the interests of the child's safety.

'If name and pronoun usage isn’t that big a deal why does deadnaming matter?'

Think about where any potential threat comes from in the matter of the importance of names and pronouns.

[WuzYoungOnceToo]

Does the fundamental right to direct your child’s medical treatment constitutionally require the school to call the parents to get express permission before putting a bandage on a cut? I don’t think so.

Well, you certainly got the "I don't think" part right. That you don't recognize the rather significant difference between the placing of a bandage on a superficial wound vs far more impactful forms of treatment doesn't make them equal for legal purposes.

[MatthewSlyfield]

There's a fundamental difference between social transitioning and first aid/emergency medical care.

[Nige]

One being an actual medical treatment, the other not.

[Rossami]

Wrong analogy. If the parents have explicitly told you ahead of time "don't bandage that finger" then you can't bandage the finger.

If the parents have been silent on the topic, then you get into a reasonableness assessment that balances the urgency of need against the practicality of calling for consent. If the kid has a non-life-threatening headache, you can't even give them aspirin without parental consent.

Or more precisely, you can give them the aspirin or apply the bandage but you're rolling the dice about whether the parent will object and sue both you and the school.

None of which is analogous to this situation, however, because there is no urgency whatsoever in deciding what name and pronouns to use. There is plenty of time to discuss this with the parents.

[Nige]

Surely a child's welfare would trump such an idiotic stricture.

[Rossami]

By the way, why might a parent tell you ahead of time "don't bandage that finger"? My wife's parents had to tell her teachers exactly that because she had (and still has) a severe allergy to something in the adhesive used in most bandaids. The medically appropriate answer in her case is 'clean it, then let a minor scrape or cut stay exposed to the air until the scab forms'.

If you decided that you knew better and applied the bandaid anyway, you would have been personally liable for the subsequent thinning and tearing of her skin and the consequent escalation from a minor scrape to a major wound.

[Nige]

Oh, well, with CONTEXT it's not so idiotic FINE.

[WuzYoungOnceToo]

Two things struck me about the decision: 1) the use of the word “transgenderism,” which I believe is a pejorative implying that being transgender is not real but rather an ideology aimed at convincing people it is real

Anything can be used as a pejorative if you mean it that way. However, here the word itself has a dictionary definition that is not inherently pejorative. It is simply descriptive of a condition:

https://www.dictionary.com/browse/transgenderism

"noun
possession of a gender identity that is not congruent with the sex assigned at birth: often associated with, but not necessarily resulting in, gender dysphoria."

[Jacob Grimes]

"the use of the word 'transgenderism' which I believe is a pejorative implying that being transgender is not real but rather an ideology"

The concept has to be called something. You would agree it's less pejorative than "gender identity disorder" or "gender dysphoria," right?

[Roger S]

Yes, transgenderism seems neutral to me. Is there a better term for the court to use?

[Josh R]

Gender dysphoria is the neutral term. To be sure, transgenderism was once a neutral term. But, it is no longer. The judge should know better.

[WuzYoungOnceToo]

But, it is no longer.

And who made you the arbiter of what words mean?

[Josh R]

I am the arbiter of my own opinion. I have heard “transgenderism” used quite a bit in recent times to mean an ideology that wishes to advance the claimed falsehood that gender identity is real.

[WuzYoungOnceToo]

I am the arbiter of my own opinion.

And you think the courts should be choosing language based on your opinion? Damn, there's an ego run amok.

And what you have/haven't heard does not determine the definition of a word.

[Josh R]

And you think the courts should be choosing language based on your opinion?

You do too (we all do).

[WuzYoungOnceToo]

You do too (we all do).

Your reliance on projection here does not serve you well. I cited dictionary definitions of the word, not my "opinion". Try again.

[Josh R]

The dictionary definition doesn't account for how the language has recently changed.

[WuzYoungOnceToo]

The dictionary definition doesn’t account for how the language has recently changed.

Make up your mind which bullshit argument you're so clumsily trying to make.

[TwelveInchPianist]

Gender dysphoria and transgenderism aren't the same thing. Gender dysphoria is acute distress due to transgenderism.

[David Nieporent]

Two things struck me about the decision: 1) the use of the word “transgenderism,” which I believe is a pejorative implying that being transgender is not real but rather an ideology aimed at convincing people it is real, and 2) requiring express parental consent before using the student’s preferred pronoun.

You know that most people aren't terminally online and don't consider these subtle nuances based on random whims of activists, right? I am aware that the bien-pensant term is currently transgender rather than transgenderism or whatever, but I'm going to guess that 99.9% of the United States population (including me!) sees no difference between those, and isn't trying to send a signal when choosing one or the other.

I know that activists think 'person with diabetes' is somehow preferable to 'diabetic,' but that doesn't mean that I am being pejorative by using the latter.

[Josh R]

In the spirit of George Carlin, I'm all for not watering down language. But this case is different because "transgenderism" has been hijacked by many who won't accept gender identity as real. I'd be more than happy to take back "transgenderism" to be strictly a medical term if others will stop using it as a description of an ideology.

[WuzYoungOnceToo]

I’d be more than happy to take back “transgenderism” to be strictly a medical term if others will stop using it as a description of an ideology.

That might happen if you and others like you would stop making it into an ideology.

[Nige]

It isn't an ideology.

[iowantwo]

Parents power far outstrips the power of the state. The State has no jurisdiction in overriding a parents wishes regarding their children.

Always error on the side of the People v the government.

[TwelveInchPianist]

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….

Sounds like the parents were initially open to the idea of transition, but after observation they decided it wasn't the correct course of action for their daughter.

This is exactly what should happen. Parents know their children best, love their children, and normally have the maturity to make these decisions.

Schools don't know the kids as well, and although they have some interest in the kid's welfare, they don't love them.

[Nige]

Doesn't matter. If the child says don't tell about the pronouns, don't tell. The child has a better idea of their vulnerability than the teacher does.

[David Nieporent]

Vulnerability to what?

[Nige]

To potential familial abuse. Other forms as well, including bullying.

[iowantwo]

Familial abuse?

Just tossing out shit, isnt a standard.

The government has zero ability to provide guidence with gender dysphoria. The govt is not superior to the parents

[Nige]

Do you deny that some children face potential abuse from some families if they are revealed as lgtbq?

[MatthewSlyfield]

The problem here is that the school district had a blanket policy of not telling the parents. It was not in any way based on an individual child asking them not to tell their parents because they were afraid of their parent's reaction.

[Roger S]

That tells me that the policy had nothing to do with safety. It was a policy for sexually grooming and manipulating children, for ideological and perverted purposes.

[Nige]

Who do they think they are, Christian pastors? Republican officials?

[DaveM]

I wish I had shuffled off this mortal coil before I had to even think about such a thing happening. This is not "progress", left-wingers. The only thing worse than a self-important, left-wing zealot is a self-important, left-wing zealot in charge of a public resource like a school.

I'm glad the parents pulled their child out of public school. Clearly that institution cannot be trusted at all. And that's the saddest part of all this, actually, the loss of trust. To literally tell a parent they aren't going to be listened to! Incredible.

[SimonP]

Eugene, your continuing red-meat posts on trans kids would benefit from some familiarity with the lives and traumas that trans people face. Where your commenters and likely you see a kid going through a questioning period, into one where they're stable and happy, a trans adult is more likely to see a trans kid struggling to find a safe space, parents so opposed to their kid's trans identity that they pulled her from school, and a kid pretending for now not to be trans so as to keep the peace and a roof over their head.

This judge goes out of his way to make the preposterous claim that a school is engaging in some kind of "medical treatment" simply by referring to a student by the name and pronoun they choose. That reasoning, if carried out to its logical conclusion, will harm not just trans and trans-curious kids, but LGBT kids, gender non-conforming kids, and really any kid who desperately needs counseling or acceptance that their parents would deny them. Zero concern expressed for the needs or interests of the kids, here.

Every single one of these discussions about trans kids takes for granted that parents are loving, informed, and invested in the welfare of their children. If that were true, then there would be no disagreement between parents and schools, when it comes to "social transitioning." But LGBT kids so often find that this is not the case, of their parents. A trans or trans-questioning kid who comes out at school but not at home, or who continues to live as one gender even while their parents decide that they should live as another, is not coming from a place where parents love or care about the welfare of their children.

So many LGBT adults point to their high school teachers as the ones who saved their life. But it seems like people like this judge would prefer that they just jump off a bridge.

[Roger S]

You say that if there is a disagreement between the parents and the school, then the parents must be at fault, and not truly invested in the kids. No, that is wrong. The school is not truly invested in the kids, and is nearly always at fault. The teachers who inject themselves into the sexual lives of schoolchildren are monsters.

[SimonP]

No, that's not what I've said, and you're a baboon.

[Roger S]

You certainly did say that. You said that if the school is socially transitioning the child, and if the "parents are loving, informed, and invested in the welfare of their children", then the parents will agree with the school policy. That is false, and is anti-parent LGBTQ propaganda.

[Nige]

The child is socially transitioning themselves, not the school. The question is whether the child feels safe enough to do so at home.

[Roger S]

No, the school is actively socially transitioning the child by using an opposite-sex name for the child, sending the child to opposite-sex toilets, promoting transgenderism, and maybe even providing pro-transgender counseling. And keeping it secret from the parents based on a false theory that the parents are not invested in the child.

[Nige]

No, the child is doing those things. If the child requests that parents not be informed it is a matter of child safety that the wish be respected.

[Roger S]

Only child molesters make that argument. The child is safest in the care of the parents. Non-parents may get some sort of thrill out of sexually manipulating children, but no child is safer that way.

[Nige]

Child safety experts make that argument. I realise you oppose child safety because hating trans people trumps everything, but there you go.

[Savagely Average]

You can't "socially transition" yourself. Social roles exist in relation to others and changing them requires the buy-in and active participation of other people.

[Nige]

Of course you can bully the kid back into their box, but that leads to bad outcomes.

[SimonP]

No, I certainly didn't say that. I said that, if the schools and the parents are both "loving, informed, and invested in the welfare" of the children they care for and are in charge of, then they would agree on the right path to "social transitioning." That doesn't mean that they both come out affirmatively in favor of doing so. That means that they can have an open and honest conversation about what's best for the child, whatever it is.

Put another way - I would have zero problem with a policy of informing parents of a student's wanting to go by a different name/pronouns, if we could count on that informing to result in the parents becoming engaged, trying to figure out what's going on with their kid, and providing appropriate guidance as the kid figures things out. I appreciate and recognize that kids don't always know what's best for them, or what they're experiencing, and their views can change. What they need is love, support, and guidance through that process - not the threat of being tossed from the home, withdrawn from school, sent to a conversion camp, beaten, or whatever else.

I would also be totally fine with school counselors being expected to guide their students into informing their parents about what they're going through. They should help students to evaluate whether their home situation is safe, and whether they might be afraid to talk to their parents for reasons that aren't merited. The counselor could offer to act as a mediator, or sounding board, or whatever else, to try to guide the kid back to their parents for parental support. When that's an option, it absolutely is preferable to acting in secrecy.

Unfortunately, a lot of the times a kid comes out as trans to their teachers because they don't feel safe talking through these issues at home. These laws that require teachers to "out" their students - with narrow exceptions for abusive situations a fig leaf to protect them - essentially deprive trans and trans-questioning students of whatever safety they might otherwise have in school.

[TwelveInchPianist]

Where your commenters and likely you see a kid going through a questioning period, into one where they’re stable and happy, a trans adult is more likely to see a trans kid struggling to find a safe space, parents so opposed to their kid’s trans identity that they pulled her from school, and a kid pretending for now not to be trans so as to keep the peace and a roof over their head.

But former view is more consistent with the evidence. Note that the parents were not initially opposed to the kid's transition. They were open to it at first, but over time, with more information and observation, decided that it was right for their kid.

Not all kids who think they are transgender should socially transition. This policy allows the parents to make the proper decision with respect to the individual child. The school's policy imposes a one-size fits all policy on kids, making it impossible to tailor treatment to the individual kids.

[Nige]

The school's policy imposes nothing on kids, it just respects their wishes in terms of their own sense of safety.

[TwelveInchPianist]

As I said elsewhere, sometimes respecting a kid's wishes is bad for the kids, and parents are in the best position to decide when that is.

[Nige]

The kid's safety comes first. If they don't feel safe, don't tell.

[TwelveInchPianist]

Ipse dixit is the best dixit.

[Nige]

That's facile.

[David Nieporent]

The kid’s safety comes first. If they don’t feel safe, don’t tell.

This is such a bizarre take. If you as a teacher/school official have a reason to believe that a child is not safe at home, then 'lie to the parents' is utterly inadequate as a response. You should be reporting the parents to child services.

And if your approach were right, why would it be limited to "gender identity"? If a child is failing a bunch of his classes, should the school consider whether the child wants his parents to be informed about it before sending an accurate report card home? If the child says, "I don't think I'll be safe if they see my grades," should the school create a fake report card, or should it call child services.

[Savagely Average]

I vote fake report card!

[Nige]

You don’t have to lie to the parents, you don’t have to say anything to the parents, and the question is how safe the child feels – there’s no way to judge whether they’re delaying until they’re sure or until they’ve gauged family reponse or whether they’re in real fear. Play it safe and let the kid set the pace.

'“I don’t think I’ll be safe if they see my grades,” should the school create a fake report card, or should it call child services.'

There's a reason why schools have guidelines around this sort of thing created by experts with experience in the area. If you want to know the correct response to this situation, and there are probably more than one depending on the situation, maybe hunt some up and see what they say?

[Roger S]

The experts say not to conceal information from parents. That has been the consensus for a long time. It is still, except for a few radical LGBTQ and transgenderism advocates.

[Nige]

No, they don't.

[Dilan Esper]

I don't doubt that there are kids whose parents are transphobic and abusive and where it would absolutely be a terrible thing to just call up the parents and tell them their kid is transitioning.

But the thing about that is where that is the situation, the state needs to get involved. It's just like any other form of abuse where there is mandatory reporting. And yes, the state needs to make very clear to parents that violent or abusive reactions to kids adopting different names or pronouns will get the parents in significant trouble.

What I think is actually going on in the trans rights movement is this-- there's a lot of kids whose parents are NOT abusive, but who are also not 100% on board with what the movement teaches is going on with youth transition. So if the state were to investigate them, it would be concluded "nothing to see here, they aren't abusive". But those parents are probably going to be skeptical and may even try to dissuade their kid from transitioning or get them into counseling or into watchful waiting.

The schools and the activists were hoping they could prevent those conversations from happening because their belief is these kids are "really trans" and don't need the counseling or watchful waiting.

[Nige]

What I think is actually going on in the trans rights movement is this'

We're talking about respecting the wishes of potentially vulnerable kids - unless the kids are part of the trans rights movement, it's just about the kids.

'The schools and the activists were hoping they could prevent those conversations from happening because their belief is these kids are “really trans'

They have no such belief. It's what the kid thinks that matters, and their own sense of safety.

[TwelveInchPianist]

"We’re talking about respecting the wishes of potentially vulnerable kids..."

Right, but sometimes respecting a kid's wishes is bad for the kids. And parents are in the best position to decide when that is.

[Nige]

The child themself is the only arbiter of whether they feel safe coming out at home. Nobody else.

[Dilan Esper]

That's not true. If it is any other allegation of child abuse, the state investigates, sees if it is able to substantiate the allegation, and decides what should happen to the child based on that investigation. It isn't perfect, but it's the only way to do things because in fact kids do sometimes either lie or misperceive things.

[Nige]

And it may come to that, but it's probably as bad an idea to report the family of every kid who experiences high levels of anxiety about opening up to their family about something as it is to dismiss that anxiety out of hand, or treat the anxiety itself as negligible in and of itself.

[DaveM]

The child is a child. They are immature, undeveloped, and still developing. They are absolutely not ready to be the "only arbiter" of what's good for them, that's ridiculous.

Have you ever been around children before?

[Nige]

I said they can be the only arbiter of how safe they feel.

[TwelveInchPianist]

“It’s what the kid thinks that matters, and their own sense of safety.”

Right now, the kid thinks she’s not trans.

[Nige]

Funny, that.

[TwelveInchPianist]

How so? I thought you were all about listening to the kids.

And it's not like there's any reason to think there's any coercion going on. According to the op, the parents were initially open to the transition but changed course after observation and consideration.

And it appears that they were right.

[Nige]

Assuming you can take the parents at their word.

They weren't 'right.' Opposing a child transitioning has nothing to do with whether the child is trans or not. If they weren't opposed to it she might have told them sooner and gone through her period of adjustment with the minimum of fuss, instead of ending up in court over it.

[TwelveInchPianist]

"Assuming you can take the parents at their word."

No, those are the facts as found in the opinion. If you want to make up your own facts and have a discussion in your head, go ahead.

[Nige]

I'm going by the facts as found, which assumes the parents can be taken at their word.

[Savagely Average]

The unstated premise here appears to be that parents who don't buy into a child's self-declaration of trans identity are presumptively endangering their child.

[Nige]

The same way any parent who is in denial about something their child is going through is potentially endangering the welfare of that child, yes.

[Savagely Average]

Yeah, again we're at loggerheads. You believe that when a child self-declares a trans identity the only valid approach is immediate and unquestioning support and affirmation, and that any parents who do not take this approach are "in denial" and endangering their child. I disagree and think yours is an extreme view lacking empirical support.

[Nige]

No, that'e the approach recommended by medical and mental health guidelines. I would say the best approach is to make a minimum of fuss about it and see how it goes.

[Roger S]

Those medical and mental health organizations have been taken over by people who say it would be bigoted to say anything. So that is the basis for the guidelines, not any empirical data. The data actually show that gender affirming care is almost always harmful.

[Nige]

Of course they have. Your hate for ttans people is more important then mental and physical health. The data shows the opposite.

[Savagely Average]

You are correct that this is the approach recommended by some professional medical societies.

That doesn't make it less extreme, and professional guidelines are not empirical evidence.

I like the term 'eminence-based medicine' to describe therapeutic approaches that aren't backed by science but have a bunch of folks on the boards of highfalutin' medical societies swearing by them.

[Nige]

I use the term 'selective scepticism' when medical and scientific bodies have reached perfectly uncontroversial conclusions in areas where there are strong culture-war opinons contradicted by those findings and suddenly those professionals and experts are hoity-toity elites.

[Savagely Average]

When it comes to medical recommendations I do think you need to be selectively skeptical. The fact is, when a bunch of fancy highfalutin’ doctors agree on something, they’re usually right. And there aren’t enough hours in the day to do your own research on every little thing. At the same time, the medical profession unfortunately is just as subject to fads, fallacies, and groupthink as any other profession. So, if a recommendation makes sense to you, fine. But if the medical consensus seems fishy it makes sense to take your own look at the data and consider whether there might be reasons other than patient welfare why doctors would recommend something.

A good example is putting women on bed rest for high-risk pregnancies. There’s little or no empirical evidence that this is helpful, some evidence that it is harmful, and a large majority of doctors who prescribe it don’t believe their patients will benefit from it. But most OB/GYNs still prescribe it. Why?

They prescribe it because there’s not much a doctor can do to reduce the chances of a bad outcome in a high-risk pregnancy. And if there’s a malpractice lawsuit a doctor doesn’t want to be stuck in the position of saying she knew the patient was high risk and yet “did nothing” – even if there was really nothing the doctor could do. It just looks better to say you “did something” — even if you yourself didn’t think it was helpful. Under those circumstances, a rational doctor will go along with the crowd and prescribe bed rest.

Taking this to recommendations for transitioning children. How can a child whose social identity’s not even fully formed have a “trans” identity? Intuitively, it doesn’t make sense. Things that don’t make intuitive sense can still be true, of course, but this one's in the “extraordinary claims require extraordinary evidence” zone. So, you go at the empirical data. And what you see is that not only is there not “extraordinary” evidence, there’s *no* credible evidence that transitioning care in young people reduces suicidality. And the evidence it leads to better mental health outcomes is very poor quality – there are no controlled clinical trials that would give you a basis to claim any perceived benefits are real.

Add on to that, you’re right that this is a culture war issue. And because of that there’s a climate of fear around it in scholarly professions. Doctors and professors are rightly scared to come across as transphobic or as insufficiently “gender-affirming.” You can really damage your career by saying the wrong thing. Again, a rational doctor will go along with the crowd. So, there’s good reason to be selectively skeptical of these recommendations for transitioning youth.

[Nige]

'How can a child whose social identity’s not even fully formed have a “trans” identity?'

The vast majority of children do not. There are developed guidelines for the tiny minority who do, or who may.

'Things that don’t make intuitive sense'

Your non-professional intuition is worthless.

'there’s *no* credible evidence that transitioning care in young people reduces suicidality.'

Suicide rates amongst trans young trans people is very high. That alone suggests intervention is necesssary. There seems to be a disparity between the effectiveness of treatment and the toll taken on mental health by living in a society that hates them.

You do realise that the paucity of studies is a sign of negelct, right?

'Doctors and professors are rightly scared to come across as transphobic or as insufficiently “gender-affirming.'

There's absolutely no evidence for this whatsoever. On the other hand, there is a danger of being branded a child-mutilating groomer and having bomb threats directed at your children's hospital just because you try to give your patient the best available treatment.

[Savagely Average]

I'll also note that while you're arguing that social transition isn't a medical intervention at the same time you're citing the opinions of medical experts in support of it.

[Roger S]

Good point. Of course those experts make lots of recommendations that we do not force on the parents. Good thing, as many of those recommendations have turned out to be wrong, or just unfounded opinion. And even those experts do not say schools should be forcing the policy in secret, without telling the parents.

[Nige]

No, child safety guidelines say that the wishes of the child in terms of their own sense of safety say that.

[Nige]

Mental and health recommendations are used as guides in many, many areas of life that are not medical interventions.

[Savagely Average]

That is true.

[iowantwo]

Every single one of these discussions about trans kids takes for granted that parents are loving, informed, and invested in the welfare of their children.

And a degree in education makes you a God?
It is impossible for the govt to make better decisions than the parents.

[Nige]

If that were true there would be no such thing as child protective services and no adults screwed up by their families would exist.

[iowantwo]

And as a percentage child protective services screw way more kids than parents. Arguing from the exceptions is never a winner.

[Brett Bellmore]

It's possible. It's just not the smart bet; If you know nothing about the situation, you'd expect the parents to make better decisions, but in unusual circumstances the government might.

Which is why the default is the parents making the decision, with a process for over-riding that decision after evidentiary hearings, not on the whim of a school administrator.

[Savagely Average]

Yeah, exactly. The presumption is that the parents, who have skin in the game, are better positioned to make the right choice. It's just not an irrebuttable presumption.

[Davy C]

This judge goes out of his way to make the preposterous claim that a school is engaging in some kind of “medical treatment” simply by referring to a student by the name and pronoun they choose

That's a preposterous claim? Huh. Maybe I should stop listening to certain people on the Internet who are constantly saying that gender dysphoria is a medical condition, for which my using the person's preferred name and pronouns is the treatment, and they will literally commit suicide if I don't.

[Nige]

Gender dysphoria is a medical condition. Using chosen pronouns is not a medical procedure. Suicide rates realy are a joke to you guys, aren't they?

[Davy C]

This school district, by the way, is in a heavily Republican area. A Democratic Presidential candidate hasn't received more than 40% of the vote in Waukesha County since Lyndon Johnson.

[ReaderY]

This is Wisconsin state trial court decision applying Wisconsin law. I don’t know the details of Wisconsin law on a subject like this. I also recognize that state constitutions often recognize the power of state courts to apply common law, and this power can sometimes involve instituting new legal theories and creating new causes of action. In Wisconsin, judges are elected. This means that both the strict separation of powers and the argument that unelected judge have no business making law that exist in the context of Federal courts do not apply here.

I agree such an injunction, derived de novo from a rather expansive interpretation of a statute and a rather creative application of general principles, would not be appropriate in a federal court. But that said, family law is a state business, and traditionally state judges are given a lot of discretion. Wisconsin is entitled to give more power to parents over what happens to their children in the state’s own public schools than it might be required to do. And it can give its judges the power to make these calls if it wants to.

As long as the state legislature retains ultimate power to alter or repeal the common law created by its judges and has the power to amend statutes to overturn interpretive judicial decisions, nothing offends the Federal guarantee of a Republican form of government if a state gives its judges expansive powers, powers like this judge seems to have used.