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NH Judge: Parental Rights ‘Not Absolute’ in New Hampshire

A Hillsborough Superior Court judge has dismissed the lawsuit brought by a Manchester mother who says the school district’s transgender policy is interfering with her rights as a parent, with the judge ruling the mother’s rights as a parent are “not absolute.” 

Judge Amy Messer ruled the Manchester School District’s policy directing teachers and staff not to fully and accurately inform parents about their child’s expressed gender identity is fine. Messer ruled parents ultimately do not have the right to direct how their children are to be educated in public schools.

“(T)he right to make decisions about the care, custody, and control of one’s child is not absolute,” Messer wrote.

The mother, who filed the lawsuit under the pseudonym Jane Doe, stated in her original complaint that she found out in fall 2021 that her child was using a different pronoun and gender identity at school. The name of the school was withheld in court documents to protect the child’s identity.

The mother spoke with school staff, including the student’s guidance counselor. The mother made it clear she wanted her child to be called by the name and pronouns the child had at birth while in school, according to the lawsuit.

Even though the staff she spoke to initially agreed, the mother soon received an email from the school principal stating that, due to the district’s policy, the mother’s instructions were being overridden. The principal stated the district’s policy requires school staff to keep such matters secret from parents if the child so chooses, according to the lawsuit. Even if staffers agree to use the child’s true gender identity when speaking with the mother, they would be obligated to not tell the mother if the child wished to be identified as something else.

The policy states teachers and staff are not to tell anyone about a child’s gender identity without the express consent of the child. School employees are also directed to use the child’s biological pronouns and given name when talking about the child to people who do not know about the nonconforming gender identity.

Messer ruled the policy, which was originally produced by the National School Boards Association and adopted by the Manchester school district, does not interfere with parental rights because parents can still direct their child’s home life. Parents can still interact with their children, direct their medical care, and supervise their social lives outside of school.

“In short, the policy places no limit on the plaintiff’s ability to parent her child as she sees fit,” Messer wrote.

Messer’s ruling mirrored arguments laid out by school district attorneys, who essentially claimed Doe had no right to direct what happens to her child in the school building.

The district’s motion to dismiss claimed the policy did not interfere with the parent-child relationship, since the mother was free to have the child identify as their birth gender at home. However, according to the motion, the mother has no rights when it comes to the child’s identity at school.

“Whatever the scope of a parent’s rights vis-a-vis their transgender or gender nonconforming children, they do not include the right to force a school district to act as a conduit for the parent exercise of those rights in this fashion,” the motion stated.

Manchester School District did not respond to multiple requests for comment. Doe’s attorney, Richard Lehmann, said he was not done with the case.

“We will appeal the ruling,” Lehmann said.

Issues like Manchester’s transgender policy were behind this year’s push in the State House for a parental bill of rights. The proposal died in the previous session after Gov. Chris Sununu signaled he would veto the bill over concerns about the privacy and safety of the students.

A new New York Times/Siena College poll finds widespread opposition to the approach to sex and gender policies in schools pushed by progressive districts like Manchester. More than two-thirds of registered voters oppose sexual orientation and gender identity being taught in elementary school, Among independent voters, 71 percent oppose it, 57 percent of them strongly.

Shannon McGinley, executive director with the conservative Cornerstone Action organization, declined to comment on the lawsuit’s dismissal. McGinley and Cornerstone vocally supported the parents’ bill of rights.

“Schools are not courts of law and should not have the authority to unilaterally deprive people of recognized legal rights. This is a government entity that is increasingly being given vast and unquestioned power over our lives and the lives of our children,” McGinley said of the bill.

 

Derry Rep Layon Pleads Guilty in DUI Case

Republican state Rep. Erica Layon said this week she regrets driving under the influence, for which she was arrested at her home in Derry on May 26. 

“I truly regret this lapse in judgment. I am following the court’s orders,” Layon said Tuesday.

Layon pleaded guilty last month to one count of driving under the influence and had her driver’s license revoked for the next nine months as part of the sentence. She is eligible to apply for early reinstatement under the plea for the first-time offense.

Layon was arrested at her home on the night of May 26 after police responded to reports of an erratic driver. The conversation with Derry police was captured on cruiser video which has since been uploaded to the Internet. In the video, Layon is seen still wearing her state representative’s name badge.

Layon appears to slur her words during the conversation with officers, and initially said she had one glass of wine at the end of the workday in Concord. She also mentioned early on that she had purchased a table to the banquet honoring Derry Police Chief Ed Garone.

Layon initially tried to tell officers that she has a borderline case of diabetes and was suffering from the effects of high blood sugar after attending an ice cream social at the State House. She also acknowledged having one glass of wine after the House session had ended for the day.

The Derry Fire Department soon sent an ambulance to check Layon’s blood glucose levels, which were at 120 mg. According to the video, the paramedic who took the reading told Layon that was a good level.

“You’re golden,” he said.

During the video, Layon explained to the officer the pressure she had been under that day. The Legislature voted down the proposed parental bill of rights she championed on May 26, and Layon appeared dejected by the defeat.

“It’s been a hell of a day. We got our asses kicked by people who think the state should be the parents, and not the parents,” Layon said.

Layon told the officer she had been receiving threats over the parental bill of rights. When the officer asked what the threat stated, she said it was “rainbow laser pew pew.”

After her blood sugar was deemed normal by paramedics, Layon was questioned about her slurred speech. At this point, she told the officer she had three glasses of wine that evening. When she refused the officer’s request to undergo field sobriety tests, she was placed under arrest.

When she was initially questioned, Layon suggested to police that the report about her driving her car erratically had been made by a neighbor with whom she had a feud over a tree. When she was told she was being placed under arrest, she revived her suspicions about the arrest.

“How much did Jim Morgan pay you guys?” Layon asked.

“I do not know who Jim Morgan is,” the officer responded.

As Layon was being handcuffed, she again mentioned Chief Garone and his upcoming banquet.

“Can I get my money back for Chief Garone’s table?” she asked.

Aside from the controversial parent’s bill of rights, which opponents claimed would out gay teens to their parents, Layon was a lightning rod for controversy last session. She sponsored a bill to revive a Cold War era anti-Communist loyalty oath for teachers which would ban them from advocating for socialism or communism in the classroom.

The bill would also ban teaching anything negative about the founding of the United States.

“No teacher shall advocate any doctrine or theory promoting a negative account or representation of the founding and history of the United States of America in New Hampshire public schools which does not include the worldwide context of now outdated and discouraged practices. Such prohibition includes but is not limited to teaching that the United States was founded on racism,” the now-defeated bill stated.

When asked by WMUR, Layon refused to say that the Three-Fifths Compromise was racist. The Three-Fifths Compromise from the 1787 Constitutional Convention states that every enslaved American would count as three-fifths of a person for taxation and representation purposes.

MSD ‘No Comment’ On Keeping Students’ Trans Activity Secret From Parents

Citizens may have a lot of questions about Manchester School District’s policy of keeping students’ transgender activity secret from their parents. But thus far, officials in the state’s largest school district are not talking. Asked about the policy, school board officials, including Mayor Joyce Craig, all declined to defend it.

The district is currently being sued by a parent who claims it uses the policy to lie to her and other parents about their children and their gender identification. According to a motion to dismiss filed on behalf of the district, the district’s defense is its belief Manchester parents have no right to know what is going on in the schools when it comes to gender issues.

“(T)his motion can be easily resolved by answering one discrete question: Do school districts have a legally enforceable duty to inform parents when a student uses a name or gender pronoun different than that assigned at birth? Because the answer to this question is no, the Complaint should be dismissed,” MSD’s filing states.

Craig, who chairs the school board, declined requests for comment on the policy. She also would not answer questions about whether she supports the policy. None of the members of the board’s policy committee, Leslie Want, Nicole Leapley, Peter Perich, Sean Parr, or Jason Bonilla, would discuss the matter, either.

Andrew Toland, communications director for the district, declined to discuss the lawsuit. Toland pointed to language in the motion to dismiss to counter the claim that the district requires staff to lie about transgender students to their parents.

“In other words, contrary to plaintiff’s characterizations, the district’s policy does not completely prohibit District staff from disclosing a student’s gender identity and expression to parents, nor does it require District staff to ‘lie,’” the motions to dismiss states. “It does not even contain an express mandate at all. It simply recognizes that the student has a right to privacy and that staff ‘should not’ disclose such information unless the student has authorized it.”

Critics note the policy, as stated, expressly strips authority from parents and gives it to children and teachers.

That is not how school board member Ken Tassey understands the policy. Speaking as a parent, Tassey said in practice, the policy would force school staff to use a student’s preferred pronouns and gender identity in school, but use that same child’s birth pronouns and identity when talking to parents who may not know what is going on.

“The policy requires that school staff lie to parents. It usurps the parent’s right to be informed about their children’s health and to exercise their parental love,” Tassey said. “The policy places the school district and the employees above the child’s parent, which is bizarre and arrogant.”

Tassey said the policy is predicated on the idea that all parents are potentially abusive toward their LGBTQI+ children, and that disclosing a child’s nonconforming identity would put that child in danger. That is simply not the case, he said.

“The vast majority of parents are going to hug their kids and say I love you,” he said.

Tassey is also concerned the policy does not have an age range and would apply to students as young as first or second grade. If a child disclosed gender dysmorphia to a guidance counselor or teacher, who may or may not be trained to deal with such a psychologically complex issue, that child’s parents would be kept in the dark if the child wished it.

Jonathan Butcher, the Will Skillman Fellow in Education with the conservative Heritage Foundation, said Manchester parents are not alone when it comes to school districts keeping secrets about their children.

“The issue of school officials hiding information about a child’s confusion about their sex is a real concern. Districts and even state departments around the country have made such secrecy to be official policy, including in New Jersey, Kansas, and elsewhere,” Butcher said. “Except in very specific cases related to a child’s safety, educators should be required to inform parents about any health-related issues concerning their child. Public school officials should not make it a policy to keep secrets about a minor child from his or her parents.”

A proposed legislative solution, the Parental Bill of Rights, would have required schools to make those disclosures to parents. The bill was shot down this year when Democrats and some Republicans objected, claiming that it would put children in danger from their own parents. U.S. Rep. Chris Pappas, D-Manchester, strongly opposed the Parental Bill of Rights.

“This legislation will do real, lasting harm to kids and should not become law. It’s so important that LGBTQ+ youth in New Hampshire know that we see them, we support them, and that they can be themselves,” Pappas said earlier this year when the bill was pending.

The Parental Bill of Rights was also opposed by New Hampshire Attorney General John Formella and Gov. Chris Sununu. Assistant Attorney General Sean Locke, with the Department of Justice’s Civil Rights Unit, testified before lawmakers in May that parts of the bill were legally problematic.

“This language could be construed to require school staff to effectively ‘out’ students–against the student’s wishes–to their parents if and when those students seek to avail themselves of protections pursuant to the school’s gender expression or identity policies,” Locke said in a statement. “This language targets students based upon their gender identity or expression for different treatment from other students, which denies those students the benefits of the particular policies designed to protect them from discrimination in schools.”

Butcher said much of the concern about outing students stems from the actions being undertaken by President Joe Biden’s administration. Biden is proposing changes to the Title IX program to combat bullying against trans students which change the definitions of sex and gender.

“It essentially proposes that schools must treat ‘sex’ to mean ‘sexual orientation and gender identity’ [as opposed to biology] and so schools would have to adopt policies to conform or risk an (Office of Civil Rights) investigation,” Butcher said.

Biden recently issued an executive order to increase access to so-called gender-affirming health care.

Butcher said the Biden team is pursuing a radical agenda that rides roughshod over parents when it comes to the care of their own children.

“Such policies could include one that says educators may not tell parents when a child wants to ‘assume’ a different gender at school. Thus, the overall policy does more to advance radical gender ideas instead of affirming parents as a child’s primary caregiver,” Butcher said.

 

Manchester Schools to Parents: We Have No Duty to Inform You of Students’ Trans Activity

In legal filings made Wednesday, the Manchester School District (MSD) declared it has no “duty” to inform parents when their children are engaged in transgender behavior or experiencing transgender ideation or dysmorphia. 

The school district made this claim in a court filing responding to a lawsuit brought by a student’s mother over the school system’s transgender policy. MSD insists the mother has no right to know if her child is living a trans identity at school, and it wants her lawsuit dismissed.

“(T)his motion can be easily resolved by answering one discrete question: Do school districts have a legally enforceable duty to inform parents when a student uses a name or gender pronoun different than that assigned at birth? Because the answer to this question is no, the Complaint should be dismissed,” Manchester’s motion states.

The mother, who is going by Jane Doe in the lawsuit, claims her child started expressing a different gender identity at school from the child’s identity at birth, and that fact was kept secret from the child’s family.

According to Jane Doe’s lawsuit, she found out last fall that her child was using a different pronoun and gender identity at school. The mother spoke with school staff, including the guidance counselor. The mother made it clear she wanted her child to be called by the name and pronouns her child was born with while in school, according to the lawsuit.

Even though the staff she spoke to initially agreed, the mother soon got an email from the school principal stating that due to the district’s policy, it would not be possible. The principal stated the district’s policy requires school staff to keep such matters secret from parents if the child wants them kept secret, according to the lawsuit. Even if the staffers agree to use the child’s biological gender identity when speaking with the mother, they would be obligated to lie and not tell the mother if the child wished to be identified as something else, according to the lawsuit.

According to the district’s motion, the mother has no rights when it comes to the child’s identity at school.

“Whatever the scope of a parent’s rights vis-a-vis their transgender or gender-nonconforming children, they do not include the right to force a school district to act as a conduit for the parent’s exercise of those rights in this fashion,” the motion states.

The district’s motion to dismiss claims that this policy does not interfere with the parent-child relationship, since the mother is still free to have the child identify as their birth gender at home.

Shannon McGinley, executive director at the conservative organization Cornerstone, said school districts should not have the power to override parents and their values when it comes to raising their children.

“Schools are not courts of law and should not have the authority to unilaterally deprive people of recognized legal rights. This is a government entity that is increasingly being given vast and unquestioned power over our lives and the lives of our children,” McGinley said.

Two weeks after Jane Doe’s lawsuit was filed, the Manchester Board of Education tweaked the transgender policy — though not by much. The original policy read: “School personnel should not disclose information that may reveal a student’s transgender status or gender-nonconforming presentation to others, including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure.”

The board took out the phrase “including parents and other school personnel,” and added a line stating, “Nothing herein shall be construed to change the obligation of the school to take action when student safety is concerned.”

The changes did not assure Jane Doe that her rights as a parent would be recognized, and the lawsuit continues in the Hillsborough Superior Court – North in Manchester. McGinley said it was one of the reasons Cornerstone backed the failed Parents’ Bill of Rights in the legislature.

“The strong opposition faced by the Parents’ Bill of Rights this session proved that public schools in New Hampshire have an established practice of withholding information from parents about their minor children’s gender and sexuality,” McGinley said. “The justification for this is that, since some parents are abusive, all parents must be presumed guilty. But that’s not how we operate in any other area of parents’ rights.”

The bill was defeated after Gov. Chris Sununu, Attorney General John Formella, and others expressed concerns about the legality of the proposal.

MSD’s actions put it at the center of the national debate over parental rights. Progressive activists reject the widely-accepted view, going back to British common law, that parents should have the final say in decisions over their children.

“Schools have a long-standing tradition and legal obligation to inform parents of their children’s medical and behavioral issues and to honor their decisions about what’s best for their kids,” wrote Luke Berg for the American Enterprise Institute. “Yet, prompted by a well-organized lobby, many school districts have decided that minor students can change gender identity at school without any parental involvement.”

Berg, a former assistant attorney general at the Wisconsin Department of Justice, says this gets the legal standards all wrong.

As any parent of school-age kids can attest, schools require parental consent for just about everything, even seemingly insignificant matters: sports, field trips, extracurricular activities, alternate education programs, and taking any kind of medication at school,” Luke wrote. “Yet in the past few years, schools nationwide have carved out an exception to this expectation for one major and controversial issue: social gender identity transitions. Unbeknownst to many parents, schools are adopting policies that allow students to change gender identity at school, adopt a new name and pronouns, and even begin using opposite-sex facilities, without parental notice or consent and sometimes in secret from parents.

“This shift is happening under most parents’ radar— until it affects their children, when it’s often too late to fight.”

Would Parental Rights Bill Force Schools to ‘Out’ Students?

State House Republicans are gearing up for another showdown with Gov. Chris Sununu, this time over HB 1431 the parental rights bill critics say would force teachers to out LGBTQ+ children and teens.

Sununu, backed by Attorney General John Formella’s office, has said he will veto the bill because of the potential harm it could do to children, and the potential liability it could create for schools. 

The bill has become a lightning rod, with Republican backers calling it an “anti-grooming” bill and Democrats saying it will put the lives of children in danger. The language in the law does appear to require schools to inform parents about their child’s sexual identity. Supporters say if a male student is using the female locker rooms or taking similar overt actions while at school, parents have a right to know.

The law was meant to solidify the legal right parents have in directing their children’s education. The rights enumerated in the bill include the right to see their child’s school records, obtain information about courses and after-school clubs, and the right to review tests and classroom materials, among other items. It’s one section deep down in the law’s text that is drawing concern. It reads that parents have:

“The right to be notified promptly when any school board, school district, school administrative unit, school administrator, or other school employee initiates, investigates, or finds the need for any action by school authorities relating to the student pursuant to school policies governing student conduct, truancy, dress code violations, sexual harassment, bullying, hazing, behavior management and intervention, substance use, suicide prevention, gender expression or identity, disability accommodation, and special meal prescription.”

Assistant Attorney General Sean Locke, with the Department of Justice’s Civil Rights Unit, told lawmakers last week this section of the law is problematic.

“This language could be construed to require school staff to effectively ‘out’ students–against the student’s wishes–to their parents if and when those students seek to avail themselves of protections pursuant to the school’s gender expression or identity policies,” Locke said in a statement. “This language targets students based upon their gender identity or expression for different treatment from other students, which denies those students the benefits of the particular policies designed to protect them from discrimination in schools.”

State Rep. Kimberly Rice, R-Hudson, who is also the speaker pro tempore of the House, said this section of the law would clearly result in school districts outing students to their families. She has called it a bad bill.

“I do believe it will force schools to out kids,” Rice said.

New Hampshire Democrats have tried to label the proposal a “Don’t Say Gay” bill, a reference to an unrelated law passed in Florida. That law simply restricts sexual content from the K-3rd grade curriculum. The “Don’t Say Gay” claim has been repeatedly debunked and the proposal had the support of a majority of Florida voters, including 55 percent of Democrats.

This factually-questionable criticism from Granite State Democrats is making it difficult for some New Hampshire parents to decide if the parental rights bill is really a problem.

New Hampshire’s bill does not ban teaching sexuality, but even some of its backers concede it could be problematic. State Rep. Aidan Ankarberg (R-Rochester), one of the co-sponsors, was surprised by the opposition to the bill. He said the proposal ought to pass and then lawmakers can fix the outing concerns after the fact.

“I will also tell you that in regards to HB1431 it was never intended to discriminate against the LGBTQ community in any way. I personally never heard of any such opposition to the bill as it traveled through the legislative process and to take it a step further, next year I will be happy to sponsor an amendment to ensure that under the provisions of the parents bill of rights that no discrimination can be justified along the lines of sexual/ethnic orientation, etc.,” Ankerberg said. “We can find solutions to these issues in the next legislative term but the governor first should sign the bill into law and we can amend it from there.”

According to Ankarberg, the law is meant to give parents solid legal footing when dealing with the state, and with schools.

“Since its conception, HB1431 has been about codifying the relationship between the state and parents, while outlining the responsibilities of that relationship therein,” he said.

The controversial section of the bill — section (g) — does not automatically out LGBTQ+ students when they disclose their identities to teachers, he said. Any disclosure to parents happens if and when the school initiates an action involving the student, he said.

“Section (g) states that parental notification will only occur once action or investigation in violation of a policy is initiated. If a child is bullied, assaulted or discriminated etc. against by staff, other students, or members of the public on school grounds or other non- private property or spheres of influence and an incident is reported and investigated, parents should have a right to know what led to the violation and the details of the investigation as relates to their child. This reasonable bill is a huge step forward for parental rights and transparency and I look forward to its passage into law,” he said.

Another backer of the bill, Rep. Erica Layon, R-Derry, said the law keeps teachers from engaging in possible inappropriate behavior with students, and it puts the right of the parents first.

“​When I was a kid, we learned in school that if any grownup asks you to keep a secret from your parents you need to tell your parents right away,” Layon said. “Just as our teachers should be treated as innocent until proven guilty, our parents deserve the same respect. Unless there is abuse, the parent-child relationship must come before the teacher-student relationship.”

A conservative lawyer who spoke to NH Journal said there is no problem with the bill as-is since schools can still use a certain amount of discretion. This source said criticism of the bill boils down to assuming parents will be abusive if they found out about their child’s orientation. 

“Do we deem all parents abusers until proven innocent and withhold this kind of information on the off chance a parent might be abusive? Of course not: schools only have in loco parentis authority in the first place because it has been delegated to the school by the parents,” this source said. “(S)chools default to disclosing this information to parents, and withhold it only if we have some specific reason to suspect parents are abusive. The schools can do the same thing here. Nothing in the policy prevents them from adopting policies that withhold information from suspected abusers.”

Opponents of the bill, like Sen. David Watters, D-Dover, suggested that children should be able to explore their sexuality with a trusted teacher, without telling their parents.

“What I think we end up doing is we end up policing curiosity,” he said according to NH Bulletin. “The child who wants to explore things, think about things, maybe get together with other groups of children and talk and learn about how they are.”

Meg Tuttle, president of the NEA-NH, the state’s largest teacher’s union, said it is dangerous to let parents get between teachers and students when it comes to talking about sex.

 “HB 1431 disregards these well-tended relationships, substituting them with rules that make our schools and classrooms less safe for every student, risk their mental and physical health and well-being, and undermine the state’s obligation to provide an adequate and inclusive education for all students. Today, for the sake of a radical political agenda, the committee put the lives of children at risk,” Tuttle said.

Tuttle has previously said teachers in the classroom should be activists, especially when it comes to teaching subjects like sexual identity.