School's Referring to Student by Student-Preferred Name and Pronouns Likely Doesn't Violate …

the parent's constitutional parental rights, including when the school conceals this from the parent.

From Doe v. Delaware Valley Regional High School Bd. of Ed., decided today by Judge Georgette Castner (D.N.J.):

Jane Doe is a freshman at Delaware Valley Regional High School in Frenchtown, New Jersey. Jane is a minor diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and Unspecified Mental Disorder (UMD), and has been under the care of a therapist for anxiety, depression, and gender confusion since April 2022. {The Court refers to Plaintiff's child as "Jane Doe," consistent with Plaintiff's Verified Complaint and the parties' briefing.} Plaintiff John Doe is Jane's father. Plaintiff alleges that he and mental health professionals "agreed to take a cautious approach to Jane's gender confusion" given her mental health diagnoses and the trauma following the death of Jane's mother.

At school, Jane participated in an extracurricular club known as "Students Advocating for Equality," or "SAFE," which "promote[s] open discussion and awareness about modern cultures and topics surrounding intersectionality while aiming to make positive contributions to [the] community and school." Defendant Ashley Miranda is a school counselor and the staff advisor of SAFE.

According to the Complaint, "Jane attended a SAFE meeting and expressed to … Miranda that she would like to undergo a social transition from female to male in school." Plaintiff alleges that Miranda "immediately affirmed Jane's expressed identity and began to facilitate Jane's social transition" and "asked Jane if she would like to change her name and pronouns and be known only as a male at school, to which Jane agreed." Plaintiff alleges that Miranda subsequently emailed the entire high school staff, except two teachers, informing them of Jane's name change, but that Plaintiff was not notified.

Plaintiff alleges that Miranda and the school concealed Jane's social transition from him in several ways. In her email to the staff, Miranda informed the staff that Plaintiff "was not to be informed of Jane's social transition." Miranda also allegedly excluded two teachers from the email because they "have contacts with members of the Doe household." {This fact is contested by Miranda through a sworn declaration. In a responsive declaration, Jane Doe says that she asked Miranda not to include two teachers on the email because of their relationship with her family. Even accepting Plaintiff's allegations as true, it is currently undisputed that Miranda's alleged actions were done at Jane's request. The parties will have an opportunity to provide a more fulsome record on this point in advance of a preliminary injunction hearing.}

And Plaintiff claims that when he communicated with the school about Jane, the school only ever referred to Jane by her given female name "for the purpose of concealing Jane's social transition." Plaintiff learned of Jane's social transitioning at school "months after it commenced," when another parent called Jane by a male name in Plaintiff's presence….

Plaintiff informed the administration that he and Jane's therapist "were not in agreement with Jane's social transition and expressly denied his consent to the continuance of Jane's social transition." The school district replied that it was compelled by law and policy to call Jane by her preferred male name until such time as Jane indicated otherwise….

Plaintiff sued, claiming defendants violated his constitutional parental rights, and sought a temporary restraining order; but the court concluded that he lacked "a reasonable chance of success on the merits":

In this case, Plaintiff asserts a liberty interest in "the care, custody, and control of" his child, which "is perhaps the oldest of the fundamental liberty interests" protected by the Due Process Clause. In support, Plaintiff cites to Supreme Court precedent recognizing a parent's general right to make decisions concerning the care, custody, and control of their children.

But the question before the Court is not whether there is a general parental right related to the care, custody, and control of children. The question is whether Plaintiff has a fundamental constitutional right that requires the Board Defendants to obtain Plaintiff's consent prior to recognizing and referring to Jane as to her preferred gender. At this stage, based on a careful review of all submissions, the Court finds that Plaintiff has not shown a likelihood of success on the merits as to this question.

For one, the cases that establish fundamental parental rights — and define the scope of those rights in a school setting — do not support the type of unqualified right that Plaintiff asserts in this case. Although United States Supreme Court precedent has affirmed the right of parents to control the upbringing of their children, it has also recognized that this right is not absolute in a school setting and that schools may impose reasonable regulations.

The Third Circuit has similarly recognized that although the "Supreme Court has never been called upon to define the precise boundaries of a parent's right to control a child's upbringing and education," it is "clear … that the right is neither absolute nor unqualified." And "despite the Supreme Court's 'near-absolutist pronouncements' concerning the right to familial privacy, the right is necessarily qualified in a school setting where 'the state's power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.'"

The Third Circuit has also found dispositive that in each of the foundational Supreme Court cases recognizing the right of parents to direct the upbringing of their children, "the state was either requiring or prohibiting some activity" by the parents. In Anspach v. City of Philadelphia, Department of Public Health, a public health center that provided a minor with emergency contraceptive pills without her parents' knowledge or consent was found not to have violated the parents' substantive due process rights. The Third Circuit reasoned that the state in Anspach was not constraining or compelling any action by the parents, in contrast to the laws at issue in Supreme Court cases such as Meyer [which banned teaching of foreign languages in private schools], Pierce [which generally banned private schools], and Yoder [which required parents to provide some sort of schooling until age 16]….

Here, Board Policy 5756 does not impose the kind of "constraint or compulsion" that the Supreme Court and the Third Circuit have found violative of parental rights. The Policy does not require Jane to engage in an activity that Plaintiff does not want her to engage in, nor does it prohibit Jane from engaging in an activity that Plaintiff wants her to engage in. Rather, Board Policy 5657 directs the school to refer to students by … their preferred gender identity without requiring the school to obtain a parent's consent or to affirmatively notify parents.

In contrast, Plaintiff asks the Court to "impose a constitutional obligation on state actors to contact parents of a minor" who requests to be recognized by a different gender identity, regardless of the minor's preference as to parental notification. Based on the current record and posture of this case, the Court is not convinced that imposing such an affirmative obligation is within "the scope of the familial liberty interest protected under the Constitution." Plaintiff has not demonstrated on the factual record at this preliminary stage that such a right is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty," and this Court is guided by the Supreme Court's and Third Circuit's admonitions not to "read these phrases too broadly to expand the concept of substantive due process … with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."

Nor does the current record establish the type of proactive, coercive interference with the parent-child relationship that the Third Circuit has found to violate parents' constitutional rights in analogous circumstances.

In Gruenke v. Seip, for example, a high school swim coach pressured a student to take a pregnancy test without her parents' knowledge or consent. The plaintiffs asserted several violations of constitutional rights, including that the coach's actions "violated [the mother's] constitutional right to manage the upbringing of her child" and "obstruct[ed] the parental right to choose the proper method of resolution" of her daughter's pregnancy. Given the coach's "continued intrusion into what was a private family matter … contrary to [the student's] express wishes that he mind his own business," the Third Circuit found that the plaintiffs had established an "unconstitutional interference with familial relations."

Five years later, in C.N. v. Ridgewood Board of Education, the Third Circuit contrasted the Gruenke defendant's behavior with a school survey that questioned students without parental consent about sensitive topics, such as sexual activity. The Third Circuit held that the survey did not violate the parents' right to control their children's upbringing because the survey, unlike the coach's actions in Gruenke, did not "strike at the heart of parental decision-making authority on matters of the greatest importance." The Court reasoned that a "parent whose middle or high school age child is exposed to sensitive topics or information in a survey remains free to discuss these matters and to place them in a family's moral or religious context, or to supplement the information … [but] School Defendants in no way indoctrinated the students in any particular outlook on these sensitive topics." Thus, the Court concluded that the survey's interference with parental-decision making authority did not amount to a constitutional violation.

The Court in Anspach similarly found that its holding in Gruenke "does not extend to circumstances where there is no manipulative, coercive, or restraining conduct by the State." In Anspach, the Court emphasized that the coach in Gruenke acted "contrary to the student's express wishes that he mind his own business," and "against her express wishes, the coach … attempt[ed] to have her admit to being pregnant, … paid for a pregnancy test and told her, through other members on the team, that unless she took the pregnancy test, he would take her off the relay team." The Third Circuit contrasted the coach's behavior with that of the health clinic, which neither coerced the minor into taking emergency contraceptives, nor discouraged her from discussing the issue with her parents. The minor was "only given the pills because she asked for them," and no one at the center coerced her into taking the pills or discouraged her from discussing the issue with her parents.

The Anspach decision also distinguished Arnold v. Board of Education of Escambia County, Alabama, a case in the United States Court of Appeals for the Eleventh Circuit where school officials "not only pressured [minor students] to refrain from discussing [a] pregnancy and abortion with their parents, but also imposed their own will on the decision of the children regarding whether to abort the pregnancy in various ways, including by providing them with the money for the procedure and hiring a driver to take them to the appointment." Critical here, while the school officials' behavior in Arnold and Gruenke violated parental liberty rights, the Third Circuit highlighted that "neither Arnold nor Gruenke provide for a [parent's] constitutional right to notice."

Here, Plaintiff has not established that the Board Defendants engaged in the type of proactive intrusion into private family matters that the Third Circuit found dispositive in Gruenke. The record so far indicates that the Board Defendants only began referring to Jane by her preferred gender identity at Jane's request, did not coerce Jane into making the request, and did not prevent or discourage Jane from discussing the transition with Plaintiff. Plaintiff does not allege otherwise in the Complaint or the sworn declarations. Although Plaintiff, in his brief, makes a conclusory remark that the "Board Defendants convinced Jane … that she should transition," Plaintiff cannot amend his pleadings by way of his brief, nor has Plaintiff alleged a factual basis to substantiate this assertion. The present record lacks particularized facts suggesting that the Board Defendants prompted Jane to initiate her request or proactively encouraged her to socially transition. Instead, Plaintiff alleges that "Jane attended a SAFE meeting and expressed to defendant Miranda that she would like to undergo a social transition." To the extent the Board Defendants "continue[] insisting on socially transitioning Jane," they are doing so only at Jane's affirmative request….

Plaintiff is also unlikely at this stage to succeed in showing an infringement of his "right to make healthcare and medical decisions for his child." Plaintiff alleges that Jane "has been under the care of a therapist for … gender confusion" and that Plaintiff and "mental health professionals have agreed to take a cautious approach to Jane's gender confusion."

Gender dysphoria has been "recognized by the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders ('DSM') as clinically significant distress or impairment related to gender incongruence.'" But Plaintiff has not alleged here that Jane has been diagnosed with gender dysphoria. And even if Jane's visits with therapists for "gender confusion" amount to a "mental health condition related to gender identity," Plaintiff has not yet shown that the Board Defendants' recognition of Jane's preferred gender identity has violated Plaintiff's right to direct Jane's medical treatment.

Again, there are no allegations that the Board Defendants engaged in "treatment" by "actively approach[ing] [Jane] regarding [Jane's] preferred name," or that they suggested that Jane be referred to by a particular name and pronoun. Where, as here, it appears that "the school merely addressed the Student by the Student's requested preferred name and pronoun," and that "it was the Student initiating and requesting the use of a different name, not the District," Plaintiff has not yet established a likelihood of showing that the Board Defendants have interfered with Plaintiff's right to make medical decisions for Jane.