Two court rulings favor LGBTQ+ rights

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Maryland parents can’t opt kids out of LGBTQ+ book curriculum, court rules

In a contentious ruling, a divided federal appeals court has rejected efforts by Maryland parents fighting Montgomery County Public Schools (MCPS) to win an opt-out option on LGBTQ+ curriculum. The parents were trying to force the Maryland school district to allow their elementary school children to sit out any assignments that required them to read books that include LGBTQ+ characters.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals ruled that the parents had not demonstrated how the Montgomery County Board of Education’s book policy would interfere with or “unduly burden” theirs or their children’s rights to “freely exercise their religion.”

The parents’ lawyers at the far-right Becket Fund for Religious Liberty claimed curriculum for pre-K and elementary school children that included books that portray gay, transgender and nonbinary characters in various situations violated the religious beliefs of the families suing and thus they should be granted an opt-out clause.

PGN first reported on this case last year when Judge Deborah Boardman of the U.S. District Court for Maryland, in a 60-page ruling delivered in advance of classes resuming Aug. 25, concluded that the parents’ “asserted due process right to direct their children’s upbringing by opting out of a public-school curriculum that conflicts with their religious views is not a fundamental right.” 

Boardman, a Biden appointee, said that the parents had failed to show that the current policy that disallows such opting out would “result in the indoctrination of their children or otherwise coerce their children to violate or change their religious beliefs.”

Boardman wrote, “With or without an opt-out right, the parents remain free to pursue their sacred obligations to instruct their children in their faiths.”

The Becket Fund for Religious Liberty legal group describes itself as a nonprofit public interest law firm based in Washington, D.C. and its mission as “defending the freedom of religion of people of all faiths.” Becket represented both Yeshiva University and Brigham Young University who had clashed with campus LGBTQ+ groups over LGBTQ+ rights at the religious colleges. Becket Fund for Religious Liberty also helmed the U.S. Supreme Court case of Fulton v. City of Philadelphia in which the Supreme Court found the City of Philadelphia violated the First Amendment rights to religious freedom of Catholic Social Services. The City of Philadelphia paid $2 million in legal fees to Catholic Social Services in that ruling. 

In this latest case by Becket Fund for Religious Liberty, a group of Muslim, Christian and Jewish parents, as well as the parental rights organization Kids First, asserted that the school district’s failure to provide an opt-out option infringed on their religious rights under the U.S. Constitution’s First Amendment.

Writing for the majority, U.S. Circuit Judge G. Steven Agee said the record was “threadbare” regarding how teachers were using these books or what children were actually being taught from them, if anything.

Agee — an appointee of former GOP president George W. Bush — said that without any such information, the court could not ascertain that there was an actual threat or that the books were interfering with their children’s religious education.

Agee wrote, “At present, however, no evidence in the record connects the requisite dots between the Parents’ children’s ages or mental capacity and their unknown exposure to the Storybooks to conclude that the Parents have already shown that a cognizable burden exists.”

U.S. Circuit Judge DeAndrea Benjamin — an appointee of Democratic President Joe Biden — joined in Agee’s opinion.

U.S. Circuit Judge A. Marvin Quattlebaum, Jr. — an appointee of former President Donald Trump — dissented. Quattlebaum wrote in his dissent that the board violated the parents’ First Amendment right to direct the religious upbringing of their children.

Becket Fund for Religious Liberty attorney Eric Baxter released a statement saying his group would appeal the ruling. 

“The court just told thousands of Maryland parents they have no say in what their children are taught in public schools,” Baxter said. 

The controversy began in 2022 when MCPS introduced more than 22 new books featuring LGBTQ+ characters into classrooms as part of a diversity initiative. In the 2022-2023 school year, the books being challenged were not mandatory. In the 2023-2024 school year, these books now are part of an English language arts curriculum list of recommended readings. The LGBTQ+ books added to the district’s curriculum are included in pre-K through eighth-grade classrooms and feature references to Pride parades, gender transition and pronoun preference. 

Some of the books at the center of the discourse include “Pride Puppy,” geared toward preschoolers and “Uncle Bobby’s Wedding,” geared toward students in kindergarten through 5th grade. Also on the list are “Love, Violet,” a story about a girl who develops a crush on her classmate and contemplates how to create a card for her for Valentine’s Day, and “My Rainbow,” the tale of a mom who makes a colorful wig for her transgender daughter.

Supreme Court won’t hear Maryland school district gender identity case

On May 20, the U.S. Supreme Court declined to accept a case from a group of parents who assert their school district was hiding transgender support plans involving their children.

The parents sued the Montgomery County school district in Maryland over guidelines adopted in 2020 that allow schools to develop support plans for transgender students and “respect the students’ wishes to keep certain information confidential,” including keeping their gender identification from their parents.

In declining the case, the Supreme Court upheld by proxy an appeals court ruling. That lower court found that the parents “lacked standing to sue” because they never established the plans were put in place specifically for their children. 

This represents yet another instance of the Supreme Court choosing to side-step cases regarding privacy and LGBTQ+ issues based on lower court rulings. The result of this decision by the Supreme Court is a victory for trans and nonbinary students as it leaves the lower court rulings that sided with trans students in place.

In their appeal to the Supreme Court, the parents said, “This case presents an issue on the merits that is roiling parents and school districts from Maine to California.” 

The parents who sued over the policy told the justices in their appeal that “It is important for parents, their children, and public schools alike to have this issue addressed and resolved now.”

But the school district argues that the district’s guidelines had been established to “ensure a safe and respectful school environment” for all students. The school district policy states that if a student chooses to disclose information to a teacher or administrator, the school “does not authorize school staff to disclose a student’s information to others.”

The 4th U.S. Circuit Court of Appeals sided with the school, but for different reasons. As in the case brought by parents over curriculum in the Maryland School District, the appeals court said that the parents had not established that they were injured in a way that allowed them to sue.

In 2021, the Supreme Court declined to take up an appeal from a Virginia school district that wanted to ban transgender students from using a bathroom that reflects their gender identity. That decision in the years-long battle by trans man Gavin Grimm let stand a lower court ruling against those prohibitions. 

In 2023, the Supreme Court also turned down a plea to overturn Washington state’s ban on conversion therapy, as a matter of First Amendment violations of free speech and free exercise of religion. But in April, the Supreme Court took the unusual step of reversing and superseding a lower court ruling on a state ban on gender-affirming medical care for minors in Idaho. The court’s decision allows Idaho to enforce a ban on the healthcare for trans minors while the case continues to make its way through the lower courts, which had temporarily stayed the ban.

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