Amber Lavigne of Newcastle, Maine, was helping clean her 13-year-old child’s room in December when she discovered a chest binder among her teenager’s possessions. Lavigne was shocked to learn the chest binder — a compression garment typically worn by transgender and gender-nonconforming people to flatten their breasts — was a gift from a school social worker, and that her child had been going by a different name and pronouns while at school.
Lavigne, who said she was never informed about the chest binder or these social changes by her child’s school, filed a lawsuit in federal court last week challenging the Maine public school’s policy of allowing students to express their gender identity without notifying students’ parents. Lavigne’s suit is the latest legal challenge in New England over schools’ ability to protect the privacy and safety of transgender and gender-nonconforming students and their parents’ right to know.
Last April, four parents in Ludlow, Mass., sued the local school committee and several school officials claiming Ludlow Public Schools’ policy affirming their transgender students’ identities violated their constitutional rights as parents. A federal judge dismissed the parents’ lawsuit in December, citing a 2012 anti-discrimination law and stating parents don’t have the right to dictate how schools educate their children; two of the parents have since filed an appeal. A similar lawsuit is pending before the New Hampshire Supreme Court on appeal from a lower court ruling which upheld the Manchester School District’s policy to keep confidential students’ transgender identity.
Republican lawmakers across the country, meanwhile, have introduced hundreds of bills this year aimed at curtailing the rights of transgender people. A “parental bill of rights” was narrowly sidelined in the New Hampshire House last month that would have forced educators to tell inquiring parents if their child was using a different name or set of pronouns. House Republicans last month also approved broad parental rights legislation that outlines what rights parents have in their children’s education.
Advocates for transgender students say public schools are required to provide all students an equal education, regardless of gender identity, under state and federal law, and maintain safe and supportive learning environments. Forcing schools to disclose students’ transgender status to their parents, they argue, would not only violate their privacy rights, but jeopardize their ability to learn.
“Public schools have an obligation to serve everyone and to meet every student where they are,” said Chris Erchull, an attorney for GLBTQ Legal Advocates & Defenders (GLAD) in Boston, who filed friend-of-the-court briefs in support of the schools in the Ludlow and Manchester cases. “In order to do that effectively, you have to create an environment where those students are free to learn, and that means that they’re respected for who they are, that they’re treated with dignity, and that they’re able to go through the school day free from discrimination.”
“I don’t think anyone disputes that parents are an essential part of what makes a student successful in school,” Erchull added. But these lawsuits “are asking courts to impose rigid rules on schools such that they can’t have the flexibility to meet the needs of individual students.”
Lavigne’s lawsuit contends that Great Salt Bay Community School, where her child was a student, violated Lavigne’s “fundamental constitutional right to control and direct the care, custody, education, upbringing, and healthcare decisions of her children,” as protected by the due process clause of the 14th Amendment.
When Lavigne discovered her child had been using a chest binder, along with a new name and pronouns, she brought her concerns to the principal of Great Salt Bay Community School and the superintendent of Central Lincoln County School System. Lavigne was told no school policy had been violated. In 2019, the lawsuit states, the school board adopted anti-discrimination guidelines for transgender students that do not mandate parental notification or involvement.
Lavigne said she pulled her child out of Great Salt Bay Community School and started homeschooling as a result.
“Our issue with [the school’s guidelines] — and I think the constitutional issue with them from the 14th Amendment’s perspective — is that the guidelines allow teachers and other school officials to make these sort of decisions without any sort of consultation or even simply informing the parents,” said Adam Shelton, an attorney for the Arizona-based Goldwater Institute, a conservative think-tank and lead counsel on Lavigne’s case. “If the school is being able to make these decisions ... parents aren’t able to adequately control and direct the education, upbringing and health care decisions of their children.”
The Goldwater Institute declined to make Lavigne available for an interview. Lynsey Johnston, superintendent of Central Lincoln County School System, did not respond to a request for comment.
Although similar lawsuits have come before judges in other states, including Iowa, Wisconsin, and Virginia, none so far have prevailed. Erchull said these lawsuits are still worrisome if these parents successfully persuade judges because schools could lose their flexibility to develop their own curriculum and policies. They could also foster cultures of “surveillance and reporting” at schools, leading students to no longer trust teachers and staff, he said.
Since 2012, the Massachusetts Department of Elementary and Secondary Education has adopted guidance for advising schools how to respect students’ gender identity in accordance with the state’s anti-discrimination laws. DESE’s guidelines require schools to keep information related to students’ gender identity or transition confidential, including from parents, except in limited circumstances. School officials, for example, are legally required to warn families if they have reason to believe their children pose a danger to themselves or others.
Kimm Topping, manager of the state’s Safe Schools Program for LGBTQ Students, which developed DESE’s gender identity guidelines, said these guidelines are intended to help students communicate changes in their gender identity to their families with support from school staff.
“If the educators and the professionals determine that there’s any concerns around safety for the child — if there is homophobia and transphobia at home — they’re going to want to be more mindful and careful with that process,” Topping said. “We really believe that anyone can move along in their acceptance and we’ve seen that happen with so many parents and families. So it’s not about avoiding that at all.”
Bob Bardwell, executive director of the Massachusetts School Counselors Association, agreed.
“If you have a good relationship with a family and you can have that conversation, obviously, you prefer the student to divulge, but sometimes that’s not possible,” he said. “For some families, it would not go well, and it’s scary for a young person who’s trying to figure stuff out and doesn’t even know what their feelings mean or what they’re going through.”
Topping said the Safe Schools Program is currently discussing how to revise the guidelines and provide additional clarification for supporting nonbinary students, a growing cohort in Massachusetts schools. According to the Views of Climate and Learning survey, administered as part of the MCAS, nearly 240 students statewide identified as nonbinary last year, up from 102 students in 2021.
“I think there’s a lot of increased awareness,” Topping said about the rise in nonbinary students. “Students know that they can openly identify as nonbinary and ... they feel safe and comfortable to be able to do that at school.”