Appeals Court Cites Lack of Jurisdiction in Ruling Against Parents in Case on Maryland School Board “Gender Identity” Policy

August 18, 2023

By Ismail Royer

A divided panel of the U.S. Court of Appeals for the Fourth Circuit ruled this week against parents suing the Montgomery County Public Schools (MCPS) Board of Education over its policy of developing “gender support plans” for students without parents’ authorization or knowledge. The appeals court did not rule on whether the policy was legal, but held instead that the parents failed to allege that the policy is being applied to their children and thus are not suffering the injury necessary to sue in federal court. RFI joined an amicus brief in support of the parents.

MCPS’s policy, adopted in 2020, requires school officials to “develop a plan” for any students who wish to “transition” to a sex other than their real one. Under the policy, this “gender support plan” should “address identified name; pronouns; athletics; extracurricular activities; locker rooms; bathrooms,” and numerous other matters. The policy goes to extraordinary lengths to keep this so-called “gender support plan” secret from parents who might reject it. 

For example, the policy states that school officials may include a student’s parents on the plan, but only “if the family is supportive of the student.” It further provides that staff members are “not authorize[d]…to disclose students’ status to others, including parents/guardians…unless legally required to do so or unless students have authorized such disclosure.” Staff must use a form in creating this plan, and it asks students to rate their parents’ support for their “transition” from zero to ten and stresses that parents may be informed of the plan “only if the student states that they are aware of and supportive of the student’s gender identity.” 

In their lawsuit, the parents alleged that MCPS’s “gender identity” policy violates, among other things, their right under the Fourteenth Amendment of the U.S. Constitution to direct the upbringing of their children. The complaint states that, with this policy,

MCPS is taking over the rightful position of the Plaintiff Parents and intentionally hindering them from counseling their own minor children concerning an important decision that will have life long repercussions and from providing additional professional assistance to their children that the parents may deem appropriate. This decision directly relates to the Plaintiff Parents’ primary responsibilities to determine what is in the minor children’s best interests with respect to their support, care, nurture, welfare, safety, and education.

As I discussed on a local Maryland news program this week, the Fourth Circuit described MCPS’s policy as “staggering from a policy standpoint,” but held that the parents who brought the suit did not establish the current or impending injury necessary for standing to bring a lawsuit in federal court, since they did not allege that their children are currently the subject of a “gender support plan.” In other words, the opinion held that the federal court system does not have jurisdiction to hear the case. As the court put it, the fact that MCPS “permits its schools to keep information about its students’ gender support plans and related gender-identity issues from their parents, while perhaps repugnant as a matter of policy, does not create standing.” 

In a fierce dissent, Judge Paul V. Niemeyer accused the panel’s majority of 

read[ing] the Parents’ complaint in this case in an unfairly narrow way and thus den[ying] the Parents the ability to obtain relief, concluding that the Parents have no standing to challenge the Guidelines until they learn that their own children are actually considering gender transition.

This, he said, amounts to an “abdication of judicial duty with respect to a very important constitutional issue that is directly harming and will likely continue to harm the Parents in this case by usurping their constitutionally protected role.” 

While MCPS and supporters are spinning this decision as a vindication of its policy, both the Fourth Circuit panel’s majority and dissent seem to agree that the policy is in fact a bad one. This much was clear from the judges’ questions during oral argument held earlier this year. 

However, the key legal issue in this case has morphed into a somewhat arcane dispute over what sort of injury must be alleged in order to challenge government policies that interfere with parents’ Fourteenth Amendment right to direct the upbringing of their children. Attorneys for the parents in this case have not yet said whether they will appeal to the Supreme Court, but because this constitutional right is at the heart of so many legal challenges across the country, the question may end up being resolved there. We will continue to support the parents in the case at every level of litigation. 

Unfortunately, this unconstitutional “gender identity” policy is not MCPS’s only offense against parental rights at this time. Last March, MCPS revoked the right of parents to opt their children out of instruction in sexual morality and identity that contradicts their religious convictions. In a lawsuit filed in May, Muslim and Christian parents in Montgomery County argued that refusing to let parents opt their children out of such instruction violates their constitutional right to raise their children as they see fit and to the free exercise of religion. I have been helping to lead a public campaign urging MCPS to rescind this policy. 

MCPS’s pattern of denying the First and Fourteenth Amendment rights of Muslim, Christian, and other parents in Montgomery County must be put to an end. 

Ismail Royer is RFI’s Director of Islam and Religious Freedom.