Does Affirming a Student’s Transgender Identity Constitute Mental-Health Counseling?
In a case that could have national implications, answering that question may help determine parents’ lawsuit in Massachusetts against public-school officials over ‘gender transitioning.’
LUDLOW, Mass. — Whether affirming a gender-identity change amounts to mental-health counseling has emerged as a key dispute between lawyers for parents and a public-school district in a federal lawsuit in western Massachusetts.
The parents’ lawyers argue that it is and that parents generally have a right to determine the mental-health therapy their children get.
Lawyers for the school district say it isn’t and that school officials were rightly following state education policy when they didn’t notify the parents after an 11-year-old girl informed school officials she was “genderqueer.”
The federal lawsuit, Foote v. Ludlow School Committee, has drawn two friend-of-the-court briefs, which is unusual at the trial-court level. The amicus briefs were filed in October by organizations on opposing sides of the case that are not directly connected to it.
Both sides are awaiting a judge’s decision on the school committee’s motion to dismiss, which will determine whether the case may go on to discovery and testimony by witnesses.
“The decision in this case will have significant consequences for the rights of families … throughout the country,” states a friend-of-the-court brief from the Family Institute of Connecticut, an organization supporting the parents’ claim.
In December 2020, a sixth-grade girl at a public middle school in Ludlow told a teacher she was experiencing insecurity, low self-esteem and depression, and that after coming across online videos about transgenderism she thought she might be a different gender, according to court papers filed on behalf of the parents.
In February 2021, according to court papers, the girl emailed teachers, a school counselor and the principal saying she would like to be called by a new name and referred to by any of seven sets of pronouns. (The options she offered were “she/her”; “he/him”; “they/them”; “fae/faerae/aer”; “ve/ver”; “xe/xem”; and “ze/zir.”)
Some school staff members immediately began referring to the student by the new name. The parents found out about a week later, after a teacher told them about it. The principal suspended and later fired the teacher, according to court papers.
Around the same time, the 11-year-old girl’s 12-year-old brother, whose parents say has attention deficit disorder with hyperactivity, also told school officials he wanted to transition to a different gender, according to court papers.
As the Register reported earlier this year, the Ludlow case is one of several pending around the country in which parents have sued school officials claiming that teachers and administrators have encouraged students to transition to a different gender without informing the parents.
“We’re seeing these types of cases, where schools are publicly saying that they are secretly transitioning children. It would be hard to believe if we weren’t seeing it all over the country. And it’s not that schools are being accused of this and denying it. Schools are sort of bragging about it,” said Andrew Beckwith, a lawyer representing the parents in the Ludlow case who is also president of the Massachusetts Family Institute, in a telephone interview with the Register. “Parents have a right to know what’s going on in their children’s lives and to make medical and mental-health decisions for them.”
The School’s Arguments
Lawyers for the Ludlow School Committee could not be reached for comment. In court papers, though, they have argued that state education policy recognizes situations in which parents should not be informed of a gender transition, and they note that state law in Massachusetts requires school officials not to discriminate against students on the basis of gender identity.
“A reasonable official could believe that a parent had no right to request or require that a school not recognize a child’s gender identity and that a parent had no right to prior notice of nondiscrimination,” states a legal memorandum filed this past July by Nancy Frankel Pelletier and David Lawless, lawyers for the Ludlow School Committee.
Guidance offered by the Massachusetts Department of Elementary and Secondary Education states: “Transgender and nonconforming students may decide to discuss and express their gender identity openly and may decide when, with whom, and how much to share private information. A student who is 14 years of age or older, or who has entered the ninth grade, may consent to disclosure of information from his or her student record. If a student is 14 and is not yet in the ninth grade, the student’s parent (alone) has the authority to decide on disclosures and other student record matters.”
The parents’ lawyers say that since their child was 11 at the time of her gender-identity announcement, then the parents should have been told about it under state policy.
Lawyers for the school committee have responded in court papers saying there is no legal precedent for such a requirement.
“While the age of the child may have some bearing on the relevant analysis, no court has established a rule that establishes a parent’s asserted right trumps the rights of an eleven-year-old or twelve-year-old who asserts their gender identity,” lawyers for the school committee wrote. “Particularly given that gender identity has been found to be immutable and that it is usually established at an early age, a reasonable official would understand themselves bound to accept a pre-teen’s assertion of their gender identity.”
Avoiding discrimination against students who say they are transgender is vital to a healthy school atmosphere, school committee supporters say.
“Parents and public schools work in partnership to help young people grow and thrive. Our public schools are tasked with providing a safe learning environment and equal educational opportunities for all students — bar none — and that includes transgender and gender-nonconforming students. Both school experience and research show that a safe and positive school climate promotes academic success for all students,” said Mary Bonauto, an attorney at GLBTQ Legal Advocates & Defenders, by email to the Register, via an assistant.
But the actions of school officials were not reasonable, says the Family Institute of Connecticut’s friend-of-the-court brief submitted by Massachusetts lawyer Carl Schmitt.
“If any other type of healthcare treatment were at issue,” the brief states, school officials “could not with a straight face claim the right to do what they have done to children in this case. But because the case is set in the context of gender-identity issues, Defendants feel comfortable asserting that they had the right, and indeed the obligation, to administer a potentially damaging mental healthcare treatment” to the two children “without parental consent or even parental knowledge.”
Whether gender identity is changeable is also a matter of dispute in the Ludlow case.
Lawyers for the Ludlow School Committee cite a 2020 federal court ruling in Virginia (Grimm v. Gloucester County School Board) that, relying on experts, found that gender identity is often established between ages 3 and 4 and that “Being transgender” is “not a psychiatric condition, “is not a choice,” and “is as natural and immutable as being cisgender.”
(“Cisgender” is a word coined in 1994 that refers to cases where a person’s gender identity matches up with the person’s biological sex — as is the case with more than 99% of people.)
On the other side, a friend-of-the-court brief filed by the Family Institute of Connecticut cites a 2018 study finding that a significant number of adolescent girls have reported gender dysphoria fueled by online sources and peers — what the brief calls “social contagion.”
The study drew on 256 surveys completed by parents of children who had announced a “transgender identification.” The children had a mean age of 15.2 years when they made this disclosure, and more than 80% were girls.
“Most (86.7%) of the parents reported that, along with the sudden or rapid onset of gender dysphoria, their child either had an increase in their social media/internet use, belonged to a friend group in which one or multiple friends became transgender-identified during a similar timeframe, or both,” the study stated.
A federal lawsuit in Florida filed in January 2022 by Wendell and Maria Perez claims that public-school officials in Clay County encouraged their 12-year-daughter’s stated wish to transition to a different gender without telling them and that she later twice tried to kill herself.
The Perezes claim religious discrimination, saying that school officials didn’t tell them about their daughter’s request because they are Catholics, and school officials felt the parents would therefore not support their daughter’s gender-identity change.
Lawyers for the school district have disputed the facts of the parents’ claims over what the lawyers call “the purported transgender advocacy,” and they have also argued in court papers that the parents have not stated a constitutional or statutory claim. The judge has not yet ruled on the school district’s motion to dismiss the case.
In New Hampshire, a mother recently lost a state superior court lawsuit challenging a policy in the city of Manchester public schools that prevents school officials from disclosing “a student’s transgender status” to parents.
The mother found out in the fall of 2021 that her minor child (of unstated sex) had asked teachers and other students to call the child “by a name traditionally associated with a gender different from” the child’s “gender as assigned at birth,” according to the judge’s decision.
The mother wanted her child addressed according to the gender that corresponds with the child’s biological sex. Some of the teachers were willing to do that, but the principal said that couldn’t be, citing a school-district policy approved in February 2021. The mother sued, saying the policy violated her rights as a parent under the state constitution and state statutes.
The judge ruled for the school district.
“Even crediting the plaintiff’s assertion that the policy would allow school officials to affirmatively conceal her child’s gender identity preferences from her, the Court rejects the plaintiff’s argument that the Policy violates her fundamental right to parent,” states the decision, written by Amy Messer, presiding justice of the Northern District of Hillsborough Superior Court, dated Sept. 5, 2022.