Transgender and gender non-conforming children sometimes face resistance from their parents. They may demand that the child identify and present as a person of their birth gender. A transgender or gender non-conforming child thus may prefer not to “come out” to their parents. Many schools have developed policies to protect the privacy of these students.
The New Hampshire Supreme Court recently addressed a policy of the Manchester School District. It provides that school staff “should not disclose information that may reveal a student’s transgender status or gender nonconforming presentation to others.” It also provides that staff should use the student’s legal name and the pronoun corresponding to their birth gender, unless the student or their parent specifies otherwise.
During the 2021-22 school year, a parent of a child in the school district opposed the child’s choice to have school staff call them by a name associated with a different gender. The principal responded that the policy required school staff to call the student by their requested name, and it further prevented staff from disclosing that choice to a parent if the student asked to keep it private. The parent allegedly persuaded the student to return to using their birth name and pronouns. Both the student and school staff told the parent that they were complying with these wishes. However, the parent suspected that school staff might be lying because of the student privacy rights provided by the policy. The parent ultimately sued the school district, arguing that the policy violated the New Hampshire Constitution.
The policy survived review in the trial court, but the parent appealed to the New Hampshire Supreme Court. Last week, the Court ruled in favor of the school district. It acknowledged that the state constitution protects the right of a parent to raise and care for their children. But the Court felt that the policy did not directly affect the ability of a parent to do these things. It disagreed with the principal’s statement that the policy requires non-disclosure, finding that its wording only “encourages” non-disclosure. The Court also pointed out that a parent could get the same information from the child or other sources. Thus, any interference with parental rights did not reach a level that implicated the state constitution.
This decision did not affect parenting rights under the U.S. Constitution. Parents and other plaintiffs have challenged similar policies on federal constitutional grounds. As the New Hampshire court noted, federal trial courts have issued clashing decisions. Thus, the question may reach higher levels of the federal courts as well.
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