• A federal judge has dismissed a lawsuit filed by parents in Massachusetts against public school officials who encouraged their two children’s gender identity transitions without telling the parents
• The judge criticized school officials for the policy
• But the judge also noted that Massachusetts requires school officials not to discriminate against students in the basis of gender identity, so their behavior does not, in his opinion, “shock the conscience”
• The parents are considering an appeal

A federal judge has chided public school officials in a western Massachusetts town for not telling parents about their children’s attempted gender identity transition, but he dismissed the parents’ lawsuit against the school officials and the board that oversees the schools.

The parents’ situation fails the “shocks-the-conscience” legal standard for due-process claims made under the Fourteenth Amendment of the Constitution, the judge said, while calling the school district’s policy “imperfect,” “flawed” and contrary to non-binding state guidance on how to handle students who announce a gender shift.

“While the court is apprehensive about the alleged policy and actions of the Ludlow Public Schools with regard to parental notification, it cannot conclude the decision to withhold information about B.F. and G.F. from Plaintiffs” meets the conscience-shocking standard “given the difficulties this issue presents and the competing interests involved,” wrote Judge Mark Mastroianni, an Obama appointee, in a ruling dated Dec. 14.

(Court papers refer to the two children, a girl who was 11 at the time of the incident and a boy who was 12, by their initials.)

As the Register has reported, in April 2022 parents Stephen Foote and Marissa Silvestri sued the elected school committee, the town and several staff members at Paul R. Baird Middle School in Ludlow, Massachusetts, in U.S. District Court, claiming that school officials violated their parental rights. Both children had told school staff members that they intended to transition to a gender that differs from the one that corresponds with their biological sex.

The first was the girl, who in February 2021 told school staff members by email that she was “genderqueer,” wished to be known by a new name and a series of new pronouns, and didn’t want her parents told about the transition. A school counselor sent an email message informing other staff members about the situation and telling them not to tell the parents. The school principal later fired a teacher who told the girl’s father.

In the parents’ complaint, lawyers argued that school officials’ encouragement of the gender transitions amounted to impermissibly making medical and mental health decisions for the children and interfered with the family’s privacy and the parents’ ability to bring up their children as they see fit.

Yet the judge noted that state law in Massachusetts “recognizes gender identity as a personal characteristic deserving of protection from discrimination” and that state laws and regulations do not “provide exceptions to permit parents to override a school’s decision to support students who identify as transgender or gender nonconforming.”

The judge also found that the parents provided “insufficient facts for the court to conclude that the conduct at issue constituted mental health treatment.”

Irrespective of a student’s age, the judge said, “Addressing a person using their preferred name and pronouns simply accords the person the basic level of respect expected in a civil society generally, and, more specifically, in Massachusetts public schools where discrimination on the basis of gender identity is not permitted.”

The judge also found that school officials wouldn’t have remained as defendants in the case even if he had let it go forward, saying that the qualified immunity they have as government officials would shield them from liability.

But the judge also criticized Ludlow school officials, saying that declining to tell parents about a gender transition at school isn’t required by state law and that “it is disconcerting that school administrators or a school committee adopted and implemented a policy requiring school staff to actively hide information from parents about something of importance regarding their child.”

“Students and parents would almost certainly be better served by a more thoughtful policy that facilitated a supportive and safe disclosure by the student, with support and education available for students and parents, as needed and when accepted,” the judge wrote.

Ludlow School Committee chairman Chip Harrington, contacted by the Register on Thursday, referred questions to a lawyer representing the school district and the district’s current superintendent, who could not immediately be reached.

The parents have until mid-January 2023 to appeal — something they are considering, said Andrew Beckwith, one of the lawyers representing the parents and president of the Massachusetts Family Institute.

“We are disappointed and disagree with the treatment of parental rights in this decision, and we are strongly considering filing an appeal to the First Circuit Court of Appeals,” Beckwith told the Register by email.