ROCKVILLE, Md. — Amid a growing backlash against the adoption of “LGBTQ”-themed books for children in public-school classrooms, a group of Maryland parents just filed a federal lawsuit against the Montgomery County Board of Education, alleging it had improperly reversed its policy of allowing parents to opt their children out of sensitive reading materials.
“The basis of the legal challenge will start with the First Amendment, which protects the right of parents to direct the religious upbringing of their children,” William Haun, senior counsel for the Becket law group, a public interest group that filed the lawsuit on behalf of three Muslim and Christian families.
“That right has always included the ability to opt your children out of religiously objectionable curricula on sensitive matters going to the core of who a person [is] and what their religious beliefs are.”
Haun told the Register that the federal lawsuit will address the Montgomery School Board’s alleged violation of both its own policies and those of the state of Maryland.
“Like 32 other states nationwide, Maryland allows parental opt outs for family-life and human-sexuality instruction. Every parent in this case got an opt out from these ‘Pride’ story books, and then the school board decided without any explanation to flip the script,” he said.
Haun noted that the Montgomery Board of Education has continued to maintain opt-out provisions for other curriculum issues that pose concerns for religious parents and that the “Pride” books were the only exception to that rule. That inconsistency could trigger a higher standard of judicial review and so pose a greater challenge for the board to defend its position.
“[I]n addition to violating the parents’ beliefs and putting deeply contested scientific positions [challenging the immutability of biological sex] in front of small children,” he said, the “Pride” books are “also asking kindergartners, first-graders, second-graders and third-graders to be excessively focused on sexual feelings, and that is simply age-inappropriate.”
According to the legal documents filed by the Becket Fund, the Board of Education reversed its opt-out policy on March 23, 2023. The board now “claims authority to introduce pre-K and elementary school kids to certain books,” which allegedly “promote one-sided transgender ideology, encourage gender transitioning, and focus excessively on romantic infatuation — with no parental notification or opportunity to opt out.”
The Register reached out to the Montgomery County Board of Education to ask about the allegations outlined in the lawsuit and did not hear back by press time.
However, a spokesperson for the board told The Washington Post that the contested reading list aligned with two of the goals of the school system’s gender-identity guidelines, “to reduce stigmatization and foster social integration and cultural inclusiveness.”
The April 11 Post report on the brewing controversy reported that school officials had defended the flip-flop by citing “Maryland law, which only allows opt-opt provisions for sex education programs.”
Last fall, the board announced that the new “inclusivity” books would be part of an English language arts curriculum designed for elementary-school students and were not technically designated as sex-education materials, despite the fact that they addressed sexual orientation and gender-identity issues.
The reading list for students in pre-kindergarten through eighth grade features books with sympathetic characters who experience the joys and struggles of “LGBTQ” people. Students are encouraged to offer support and join the fight for “justice.”
One book, My Rainbow, is described in the reading list as “the story of a dedicated mom who puts love into action as she creates the perfect rainbow-colored wig for her transgender daughter.”
Common experiences, like a school crush or hero worship, are presented through an “LGBTQ” lens. Love Violet, for example, features a young female student’s crush on another girl, while Prince & Knight, a children’s picture book, “tells the story of a young prince who falls in love with a knight after the two … battle a dragon threatening the kingdom. At the conclusion of the book, the two wed.”
And Pride Puppy, asks children as young as 3 years old to look for images from a word list that includes “intersex flag,” “drag queen,” “underwear,” “leather.” According to Becket, another book advises students “that a decision to transition [to the opposite sex] doesn’t have to ‘make sense,’” and teachers are prompted to explain that “doctors only ‘guess’ when identifying a newborn’s sex anyway.”
The Maryland case was filed just a week before June 1, when the nation begins “Pride Month,” with schools offering a host of educational initiatives and events timed to celebrate the lives of Americans who identify as “LGBTQ.” During this month, educators may encourage students to celebrate same-sex unions, explore gender fluidity, and even consider the idea that parents and physicians can misidentify the gender of infants after birth so children need to be sure their gender is aligned with who they really are.
At the same time, school libraries routinely offer “LGBTQ”-themed books throughout the year, and parent activist groups, like Moms for Liberty, have participated in school-board meetings and organized protests demanding that books with sexually explicit behavior be removed from library shelves.
According to the American Library Association’s list of the 10 most challenged books of 2021, the first three include Gender Queer by Maia Kobabe, a graphic comic novel about being “gender nonbinary,” Lawn Boy by Jonathan Evison, a semiautobiographical book that includes a sexual encounter between two fourth-grade boys, and All Boys Aren’t Blue: A Memoir-Manifesto by George M. Johnson, a Black author who identifies as “Queer.”
A growing number of U.S. states have reacted to these developments by passing legislation designed to restrict “LGBTQ”-themed books and classroom discussions. In some cases, state legislatures want to bar schools from allowing students to change their pronouns without their parents’ knowledge, a trend that has provoked pushback from “LGBTQ” activists and their allies.
“These bills are predicated on the belief that queer identities are a contagion while straight, cisgender identities are somehow more pure or correct,” an ACLU spokesperson told CNN. “In truth, every student has a right to have their own life stories reflected back at them and every student benefits from stories that serve as a window into the lives of people different from them.”
Weighing the Arguments
Now, as more school-board disputes over so-called “book bans” related to “LGBTQ” topics end up in court, experts who sympathize with the parents’ predicament will be weighing the arguments that are most likely to secure a legal victory. The Maryland case, which focuses on the right of religious parents to guide their children’s exposure to sensitive issues, does not seek to restrict the broader community’s access to controversial texts, and the success of that approach will be scrutinized as the case moves forward.
“The Montgomery County case is one of an exploding number of court cases where parents are resisting the progressive, if not ‘woke,’ indoctrination of their public-school children,” Gerard Bradley, an expert on the Constitution at University of Notre Dame Law School, told the Register.
“The issue in this case is typical, in that it pertains to sexuality and family.”
But when asked to assess the likelihood that the Montgomery County parents will prevail in court, Bradley was cautious about making any prediction.
“Lower courts are swamped with cases such as this one,” he noted.
“Parents stand a better chance of getting judicial relief where they allege not only violations of parents’ rights to direct the upbringing of their children, but religious-liberty violations as well.
“So far, on the specific issue of protections against curricula in public schools, parents have won several victories. But on the whole they have lost more cases than they have won.”
After a slew of recent Supreme Court rulings strengthened the rights of religious parents in educational settings, however, some families believe they have cause for hope.
“In the last few years the Court has decisively championed the religious-freedom rights of families to be included in the distribution of state aid to private schools; in other words, states may not exclude parochial schools from voucher programs and the like,” Douglas Laycock a leading expert on religious freedom, told the Register.
That said, Laycock echoed Bradley’s cautious view of the impending litigation.
The Court “has yet to articulate anything like a coherent legal doctrine about the constitutional rights of parents to control their kids’ education where the kids attend public schools,” said Laycock, while noting that the present Supreme Court would be “more sympathetic to the claims made by the Maryland parents.”
“The leading case is still Mozert v. Hawkins County Public Schools from the 6th Circuit in 1988. It basically says that parents have no opt-out rights except to pull their child out of public schools. While there, he can be made to study anything.”
Haun, the Becket lawyer, acknowledged that the Maryland case is moving into a new legal “frontier.” But he suggested that the parents’ lawsuit was an understandable response to the recent intrusion of “ideological” arguments and theories into public-school curricula.
“We are seeing a new-level experimentation, and that is all the more reason why we should uphold the right of parents to direct their children’s education,” said Haun.
Noting a recent case in Philadelphia where the parents prevailed in court, he emphasized that “parental rights is a real right. It is not a hypothetical right. It is not a theoretical right. It is an enforceable right.
“That means that parents, not government schools, are the primary educators of their children. The schools are meant to help the children to that end.”