Parental Rights: Evaluating Constitution Claims Against Outing Protections
In 2021, the Virginia Department of Education formulated guidelines that required school districts to treat gender identity as privileged information, effectively barring school from “outing,” or the non-consensual disclosure of a person’s gender identity.[1] It’s not alone: dozens of states and school districts have adopted guidelines that discourage, and sometimes prohibit, the outing of a student to their parents.[2]
Such regulations have been accompanied by fierce opposition from so-called “parental rights” groups, who assert that outing protections infringe upon their right to control their child’s education. For example, a lawsuit against a Wisconsin school district with outing protections alleges that the regulations violate the constitutional “right of parents to direct the upbringing and care of their children.”[3] Similar lawsuits have been filed in Massachusetts, Florida, Kansas, Virginia and Maryland.[4]
This article considers whether the “fundamental right…to make decisions concerning the care, custody, and control of their children,” commonly referred to as the Meyer-Pierce right, prohibits governing bodies from adopting outing protections.[5] It first explores the Meyer-Pierce right, before contending that outing protections do not violate the Meyer-Pierce right.
The Meyer-Pierce right can be traced back to the Supreme Court cases Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Meyer found that the 14th Amendment’s liberties included the right for a parent to “give his children education suitable to their station in life,” and thus, invalidated a Nebraska law prohibiting foreign language instruction to minors.[6] Likewise, Pierce found that compulsory public school attendance laws were an “unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children,” as they prohibited parents from securing the “appropriate mental and religious training” for their child.[7]
The Meyer-Pierce right has since been affirmed multiple times by the Supreme Court, most recently in Troxel v. Granville (2000), which found that there was a “fundamental right under the Fourteenth Amendment for a parent to oversee the care, custody, and control of a child.”[8] Despite being one of the “oldest of the fundamental liberty interests recognized” by the Supreme Court however, the Meyer-Pierce right is not absolute.[9] Existing Meyer-Pierce jurisprudence, including Stanley v. Illinois (1972), Quilloin v. Walcott (19780, Santosky v. Kramer (1982), and Troxel, have centered on family law, and thus, do not provide clear guidance on the limits of the Meyer-Pierce right in education policy.[10]
However, cases that do directly implicate education policy provide more insight into the limitations of the Meyer-Pierce right. In Prince v. Massachusetts (1944), the Court acknowledged that when “acting to guard the general interest in youth's wellbeing, the state, as parens patriae, may restrict the parent's control.”[11] In Wisconsin v. Yoder (1972), however, the Court invalidated a compulsory school attendance law, finding that requiring Amish students to attend high school would “gravely endanger if not destroy the free exercise of their religious beliefs,” and thus, violate the free exercise of religion under the First Amendment, alongside the Meyer-Pierce right for “parents to direct the religious upbringing of their children.”[12]
Still, the Court has not yet articulated a consistent level of scrutiny pertaining to restrictions on the parental right to education. Lower courts have thus adopted competing levels of scrutiny related to the Meyer-Pierce right. The first, advanced by the First Circuit in Brown v. Hot, Sexy & Safer Prods. Inc. (1995), holds that Meyer-Pierce “evince the principle that the state cannot prevent parents from choosing a specific educational program.”[13] In other words, cases invoking Meyer-Pierce rights should only be subject to strict scrutiny when they implicate the selection of an education program. The First Circuit’s view has since been endorsed by the Sixth Circuit in Blau v. Fort Thomas Public School District, as well as the Ninth Circuit in Fields v. Palmdale.[14]
Under this account, it’s clear that outing protections do not violate Meyer-Pierce rights. Outing protections do not implicate the selection of education programs, and thus, are not subjected to a strict scrutiny standard. Rather, the state must likely satisfy a rational review test, where they are only required to demonstrate a legitimate state interest and a connection between a statute's means and goals.[15] Under this less rigorous standard, states can easily demonstrate a connection between their legitimate educational interests and outing protections. The Court has held in multiple cases that non-discrimination, inclusion, and safety are within a school’s educational mission.[16] Because outing protections aim to safeguard LGBTQIA+ students from abuse and harassment, as well as ensure their full participation in school activities, it is clear that they fall within a school’s legitimate educational interest.
A more difficult challenge to outing protections lies in the comparatively expansive view articulated by the Third Circuit in Gruenke v. Sep (2000).[17] In Gruenke, the Third Circuit held that when “school's policies might come into conflict with the fundamental right of parents to raise and nurture their child,” the “primacy of the parents' authority must be recognized and should yield only where the school's action is tied to a compelling interest.”[18] Thus, unlike Brown, a school district would likely have to satisfy a strict scrutiny review to justify outing protections under Gruenke.
To satisfy a strict scrutiny review, a state “must demonstrate a compelling interest, and it must further show that a challenged statute or regulation is either necessary, narrowly drawn, or narrowly tailored to protect that interest.”[19] This article submits that outing protections can, in fact, survive strict scrutiny review.
On the first prong, Prince already establishes that a state may curb parental rights in the interest of the safety of a child. It is well established that LGBTQIA+ youth face particularly high rates of familial rejection and abuse. In 2022, for example, fewer than 40 percent of LGBTQIA+ youth self-identified home as an affirming place.[20] This rejection is associated with significantly worse life outcomes: LGBTQIA+ teens who experience rejection are 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs.[21] Moreover, this rejection is closely tethered to high rates of housing insecurity among LGBTQIA+ youth. LGBTQIA+ youth comprise 40 percent of the homeless youth population, despite making up just seven percent of the youth population as a whole, with familial conflict representing the driving common cause for this homelessness.[22]
In the simplest of terms, the very real threat of familial rejection and its associated effects compromises LGBTQIA+ youth’s ability to thrive in school and live a dignified life. Consequently, outing protections fall squarely within the state’s interests to protect the safety of a child.
Satisfying the second prong of strict scrutiny review is more difficult. It’s clear that outing protections are necessary to protect the safety of students who live in hostile home environments. But whether they are narrowly tailored is a challenging question. It is plausible, for example, for governments to adopt regulations that are generally neutral as to whether a school can disclose a student’s gender or sexual identity, but prohibits disclosure in specific cases where such disclosure may cause abuse or estrangement.
However, this regime is entirely unworkable in practice. There is simply no way for school staff to know whether the disclosure of a student and gender identity would cause abuse or estrangement. In contrast, a blanket ban on non-consensual disclosure obviates any need to know about a student’s home life.
Moreover, many LGBTQIA+ youth are uncertain on what their parents' reactions to their identity may be, and thus, prefer to maintain the confidentiality of their identity. These students still experience significant levels of stress, and may be harmed by the disclosure of their sexual or gender identity if their parents respond adversely.[23] Yet, they retain few options under this regime. Assume that this student attempts to report that they suspect an adverse familial reaction would occur should their parents find out about their sexual or gender identity, in an attempt to be protected from non-consensual disclosure. Would the student be required to justify their claims? If so, how could they do so if they are taking a fundamentally preventative step? Moreover, it seems that such a regime would still pose potential problems for the Meyer-Pierce protections, for parents would be incapable of challenging their student’s actions. Finally, it is unclear how this regime could possibly cooperate with the mandatory reporting laws that trigger abuse investigations across all fifty states.[24]
In effect, this narrower regime poses a myriad of implementation and legal issues that render it unworkable. Thus, there is no feasible alternative for a state to achieve its goal of protecting LGBTQIA+ students from familial rejection besides a blanket ban on the non-consensual disclosure of a student’s sexual and gender identity.
In summation, this article argues that claims that outing protections violate the Meyer-Pierce right for a parent to direct the upbringing of their child fail, under both the rational review and strict scrutiny test. Importantly, this article is confined to the Meyer-Pierce right. Further research is needed to determine whether some other Constitutional protection, particularly the Free Exercise clause, undermines the state’s ability to effect outing protections.
References
[1] Virginia Department of Education. “Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools,” March 2021. https://equalityvirginia.org/wp-content/uploads/2021/03/Transgender-Student-Model-Policies-March-2021-final.pdf.
[2] George, Donna St. “Gender Transitions at School Spur Debate over When, or If, Parents Are Told.” Washington Post, July 26, 2022. https://www.washingtonpost.com/education/2022/07/18/gender-transition-school-parent-notification/.
[3] “Complaint and Summons,” https://www.aclu.org/cases/doe-v-madison-metropolitan-school-district?document=doe-v-mmsd-complaint-and-summons, Doe v. Madison Metropolitan School District, No. 2020CV000454 (Cir. Ct. Dane County, WI.).
[4] George, Donna St. “Gender Transitions at School Spur Debate over When, or If, Parents Are Told.” Washington Post, July 26, 2022. https://www.washingtonpost.com/education/2022/07/18/gender-transition-school-parent-notification/.
[5] Fields v. Palmdale School Dist., 447 F.3d 1187 (9th Cir. 2006)
[6] Meyer v. Nebraska, 262 U.S. 390 (1923)
[7] Pierce v. Society of Sisters, 268 U.S. 510 (1925)
[8] Troxel v. Granville, 530 U.S. 57 (2000)
[9] Ibid.
[10] Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 246 (1978); Santosky v. Kramer, 455 U.S. 745 (1982); 530 U.S. 57 (2000)
[11] Prince v. Massachusetts, 321 U.S. 158 (1944)
[12] Wisconsin v. Yoder, 406 U.S. 205 (1972)
[13] Brown v. Hot, Sexy & Safer Prods. Inc., 68 F.3d 525 (1st Cir. 1995)
[14] Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005); 447 F.3d 1187 (9th Cir. 2006)
[15] LII / Legal Information Institute. “Rational Basis Test.” Accessed March 24, 2023. https://www.law.cornell.edu/wex/rational_basis_test.
[16] Fisher v. University of Texas at Austin, 579 U.S. 365 (2016); Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999)
[17] Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000)
[18] Ibid.
[19] Richard Henry Fallon, “Strict Judicial Scrutiny,” UCLA Law Review 54, no. 1267 (June 26, 2007): 1283, https://www.uclalawreview.org/strict-judicial-scrutiny/.
[20] Trevor Project. “2022 National Survey on LGBTQ Youth Mental Health,” 2022. https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.
[21] Caitlin Ryan et al., “Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults,” Pediatrics 123, no. 1 (January 2009): 346–52, https://doi.org/10.1542/peds.2007-3524.
[22] True Colors United. “True Colors United - Our Issue.” Accessed March 24, 2023. https://truecolorsunited.org/our-issue/.
[23] Sabra L. Katz-Wise, Margaret Rosario, and Michael Tsappis, “LGBT Youth and Family Acceptance,” Pediatric Clinics of North America 63, no. 6 (December 2016): 1011–25, https://doi.org/10.1016/j.pcl.2016.07.005.
[24] Child Welfare Information Gateway, “Mandatory Reporters of Child Abuse and Neglect,” 2019, https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/manda/.