Wisconsin Court Sides with Parental Rights over School District Gender Transition Policy

A school district’s policy “to enable and affirm a minor student’s transition to a different gender identity at school without parental consent violates parents’ constitutional right to determine the appropriate medical and healthcare for their children,” a Wisconsin court ruled Tuesday. “This victory represents a major win for parental rights,” said Wisconsin Institute for Law and Liberty (WILL) Deputy Counsel Luke Berg. “The decision should be a warning to the many districts across the country with similar policies to exclude parents from gender transitions at school.”

Over 1,000 school districts across the nation reportedly have policies that not only affirm a child’s social transition without the consent of parents, but in some cases even mandate that school officials actively hide the child’s transition from his or her parents.

“Parents have fundamental liberty interest in the decisions regarding ‘care, custody, and control of their children,’” said Waukesha County Circuit Court Judge Michael Maxwell. “Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”

“This is undisputedly a medical and healthcare issue,” said Judge Maxwell. While the parents’ legal counsel presented multiple affidavits from medical professionals, the school district “seemingly ignore[d]” the argument and “put forth no evidence to the contrary.” He noted, “both doctors agree that living a ‘double life’ where a child’s gender roles are different at home and school, is ‘inherently psychologically unhealthy.’”

Accordingly, the judge identified a parental right “to determine the appropriate medical and healthcare for their children.” He weighed the school district’s arguments according to the strict scrutiny test, and he found that they lacked “clear and compelling evidence” to justify their position.

Instead of countering these experts, Kettle Moraine School District, in a Milwaukee suburb, “focus[ed] on arguing against a position that the Plaintiffs never took up — which is the right to control how a school educates one’s child,” observed the judge. But he concluded, “this case is not about parents controlling how a school specifically educates its students.” Thus, the judge distinguished the case from a 2022 federal district court ruling in Montgomery County, Maryland, “where the court there found that the school district did not need to tell parents if their kids went with different names/pronouns. … That court viewed the case as closer to one’s where curriculum was challenged.”

Continuing in the education vein, the school district also argued that their transgender policy was based on “a worry that they may be in violation of Title IX had they not done so.” They referred to “a Dear Colleague letter regarding Transgender Students,” which the Obama administration Department of Education circulated in 2016, and which “adopted an interpretation of this law which concludes that ‘discrimination based on sex’ includes discrimination based on ‘gender identity.’” However, the judge pointed out that such guidance never carried the force of law, was enjoined by a federal court, and “has since been rescinded.”

The judge concluded by acknowledging that “transgenderism involving minors within our schools” is a controversial issue in modern society, and that “the law on this issue is still developing across the country and remain[s] largely unsettled.” But he added, “However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well-established case law in that regard is clear — Kettle Moraine cannot.”

Judge Maxwell issued an injunction preventing the school district “from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent.”

The outcome of the case seems to heavily rely on the judge’s characterizing it as a medical issue. “The School District could not administer medicine to a student without parental consent. The School District could not require or allow a student to participate in a sport without parental consent,” he said. “Likewise, the School District cannot change the pronoun of a student without parental consent without impinging on a fundamental liberty interest of the parents.”

“Parents’ rights to direct the upbringing and education of their children is one of the most basic constitutional rights every parent holds dear,” said Kate Anderson, senior counsel for Alliance Defending Freedom (ADF) and director of ADF’s Center for Parental Rights. “The court was right to respect the serious concerns of these parents by holding that Kettle Moraine School District’s policy, which undermines parents and harms children, violates the Wisconsin Constitution.”

WILL and ADF originally sued the school district over its transgender policy in 2021, but this is the first legal decision on the merits of the case. Within the Wisconsin judicial system, the Circuit Court’s decision can be appealed to either the state Appeals Court or the state Supreme Court. Earlier this year, Wisconsin progressives mobilized to elect a new progressive to the Wisconsin Supreme Court, flipping the balance of power in their favor.