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Lawsuit: Manchester School District is Violating Constitution

The Manchester School District’s transgender student policy violates the state constitution which protects the right of parents to raise their children, according to a new filing in the lawsuit brought by a Manchester mother. 

The woman, who is known as Jane Doe in the lawsuit, is responding to the district’s motion to have the case dismissed on the grounds that the district has no legal obligations when it comes to telling parents about their child’s activities at school regarding sexual and gender identity.

The response, filed in Hillsborough Superior Court-North in Manchester and written by attorney Richard Lehmann, hits back at the district accusing school officials of interfering with Jane Doe’s rights as a mother by forcing staff to keep secrets from parents. 

“Knowledge that the school is actively supporting a child’s decision to transition to a different gender identity when a parent would believe a different response is in the child’s best interests is precisely the kind of information that a parent would be likely to consider in deciding ‘whether’ to send a child to public school or to choose some other option,” Lehmann writes. “However, the policy purposefully and intentionally interferes with the ability of a parent to obtain this information. The defendant argues that it has no duty to advise parents of a student’s transgender expression in schools. This too serves to burden a parent’s right to direct the education and upbringing of children.”

Lehmann also argues that Manchester’s policy, which requires school employees to withhold information from parents and to actively mislead parents at the child’s request, is a violation of New Hampshire’s Constitution’s Part 1, Article 2, which states all people “have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty . . . and . . . seeking and obtaining happiness.”

Lehmann notes the right of parents to raise their children has been recognized by the New Hampshire Supreme Court as a constitutional right.

“Our Supreme Court has recognized that: [t]he family and the rights of parents over it are natural, essential, and inherent rights within the meaning of the New Hampshire Constitution. Because of their fundamental importance, great judicial deference has been accorded parental rights,” Lehmann wrote.

Jane Doe learned in 2021 that her child, known in the filing as M.C., was using a different gender identity at school than M.C.’s biological sex, according to court records.

When Jane Doe confronted the school staff, M.C. ‘s teachers agreed that she had the right to step in as M.C. ‘s mother and direct staff to use M.C.’s natural identity and gender.

“I do think that a parent should be giving permission for their child to be called by any other name,” one of M.C.’s teachers wrote to Jane Doe.

However, soon after the teachers agreed to use M.C.’s biological identity, the school principal wrote to tell Jane Doe that the district’s policy makes that impossible.

“Good Morning [Jane Doe]. While I respect and understand your concern, we are held by the District policy as a staff. I have quoted our district policy below, which outlines the fact that we cannot disclose a student’s choice to parents if asked not to. If [M.C.] insists on being called [M.C.’s desired name] as a staff we have to respect that according to the policy or unfortunately we can be held accountable despite parents’ wishes,” the principal wrote.

No one in Manchester’s School Administrative Unit would talk to NH Journal in support of the policy. Mayor Joyce Craig, chair of the school board, also declined to defend it. No one on the school board’s policy committee agreed to speak about it, either.

The district claims in its motion seeking to have the case dismissed that the policy does not interfere with Jane Doe’s rights as a parent because she can use M.C.’s biological sex and birth name in the home. But in school, Jane Does has no right to say how her child is to be treated, according to the district’s motion.

“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 district’s motion states.

Lehmann argues the district’s position is akin to a Jewish family asking that their child receive kosher food or a Hindu family asking that her child be given vegetarian food, only to have the school staff keep secrets and lie to parents about what they are feeding the children.

“But when a school affirmatively acts in ways that hide these kinds of facts from parents, they violate the parent’s rights to direct the upbringing of their children, to become engaged in the child’s development, and to exercise their right to provide guidance,” Lehmann wrote.

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.”