By Charles J. Russo, University of Dayton; Maggie Paino, University of Wisconsin-Madison; and Suzanne Eckes, University of Wisconsin-Madison
As an increasing number of elementary, middle and high school students in the U.S. have begun to identify as transgender, school leaders have struggled to figure out how to respond, and how – and whether – to communicate about their actions to parents.
In Maryland, for instance, three sets of parents filed a federal lawsuit in 2020 that challenged school guidelines allowing students to express their gender identities at school. In some situations teachers and other school staff are asked not to notify parents they are doing so.
The federal trial court ruling, which has been appealed, determined that parents did not have a fundamental right to be informed promptly if their children chose to identify as another gender while at school.
The judge tried to balance both parents’ rights under the due process clause of the Constitution and states’ rights to regulate public education, even if they conflict with parental wishes.
The judge found that while school board officials intended to ultimately inform parents, if educators had concerns about a child’s safety they would hold off on doing so.
The board’s rules, the judge wrote, “keep a student’s gender identity confidential … out of concern for the student’s well-being.” The rules also call for a “comprehensive gender support plan that anticipates and encourages eventual familial involvement wherever possible.”
In short, parents have a general right to know about their children’s activity in school. However, parental rights can be limited by students’ rights to privacy and personal safety.
The Maryland case is by no means the only case in which school officials have been caught between students’ right to privacy and parents’ right to know. As researcherswho specialize in education law, we have analyzed similar cases in Iowa, Massachusetts, Wisconsin and Virginia.
Regardless of how the cases from Maryland and elsewhere play out, this issue is likely to continue to generate additional controversy and litigation.
Parents’ rights vs. schools’ obligations
Disagreements between parents and schools over education are not new. In 1925, in Pierce v. Society of Sisters, a dispute from Oregon, the Supreme Court upheld the rights of parents to send their children to schools run outside the public education system.
The justices famously wrote: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This signaled clearly that parents have rights over how their children are raised and educated.
But the U.S. Supreme Court has not yet decided clearly where the rights of parents end and the rights of their children begin. As a result, an appellate court in New Jersey observed that courts have held that “in certain circumstances the parental right to control the upbringing of a child must give way to a school’s ability to control curriculum and the school environment.”
Courts have even decided that there may be times when school or other public officials have legitimate interests in intervening where parents would typically have free rein, to assist or protect children. For example, educators might choose to keep information about students’ gender identity from parents if school staff members have reason to believe the students would be kicked out of their houses, physically abused, or forced to participate in abusive counseling programs, such as conversion therapy.
The role of students’ rights
At the same time, school officials must ensure protection of students’ rights. In particular, many states have laws requiring school board officials to protect their students from discrimination and violations of privacy.
In the wake of the Supreme Court’s decision in Bostock v. Clayton County, interpreting Title VII of the Civil Rights Act of 1964 as applying to people who are gay or transgender, the U.S. Department of Education told school boards across the country that they cannot allow discrimination on the basis of sex, sexual orientation or gender identity.
School staff members have legal obligations to protect students’ privacy. According to the 3rd U.S. Circuit Court of Appeals, “It is difficult to imagine a more private matter than one’s sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity.”
Even so, schools often want parents to be involved in their children’s education and the wider school community. This regularly puts educators in the sensitive position of having to protect student privacy while respecting parental rights to raise their children in accordance with their values.
It remains to be seen how courts will balance parental rights to direct the lives of their children and the role of educators in safeguarding the privacy rights of students – and whether the Supreme Court can, or will, ever set clearer rules in this important topic.