Parents v. Mont. Cty. Bd. of Educ.

• Docket Number: Case No. 8:20-3552-PWG
• Decision Date: 18 August 2022
• Citation: 622 F.Supp.3d 118
• Parties: JOHN AND JANE PARENTS 1, et al., Plaintiffs, v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — District of Maryland

622 F.Supp.3d 118

JOHN AND JANE PARENTS 1, et al., Plaintiffs, v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al., Defendants.

Case No. 8:20-3552-PWG

United States District Court, D. Maryland, Southern Division

Signed August 18, 2022

Frederick W. Claybrook, Jr., Claybrook LLC, Washington, DC, James Alan Davids, Pro Hac Vice, Steven Werner Fitschen, Pro Hac Vice, The National Legal Foundation, Chesapeake, VA, for Plaintiffs.

Alan E. Schoenfeld, Pro Hac Vice, Simon B. Kress, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Bruce M. Berman, Pro Hac Vice, Alexandra Tucker Stewart, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Defendants.

David Edward Mills, Cooley LLP, Washington, DC, Asaf Orr, Pro Hac Vice, National Center for Lesbian Rights, San Francisco, CA, Jeffrey M. Gutkin, Pro Hac Vice, Reece Trevor, Pro Hac Vice, Ryan O'Hollaren, Pro Hac Vice, Cooley LLP, San Francisco, CA, Paul David Castillo, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, for Amici PFLAG Metro, DC, FreeState Justice, MoCo Pride Center, The Center for LGBTQ Health Equity — Chase Brexton Health Care, Rainbow Youth Alliance, SMYAL, Whitman-Walker, Inc.

MEMORANDUM OPINION

Paul W. Grimm, United States District Judge

In this action, three parents of Montgomery County Public School ("MCPS") students allege that MCPS's 2020-2021 Guidelines for Student Gender Identity in Montgomery County Public Schools (the "Guidelines") violate their state and federal constitutional rights as parents, as well as various state and federal statutes and regulations. ECF No. 7, Complaint. Pending before me is the Motion to Dismiss filed by Defendant Montgomery County Board of Education ("MCBE") and its members. ECF No. 32, Defendants' Motion to Dismiss ("Motion"). The Motion has been fully briefed,¹ and an Amicus Brief has been filed in support of MCBE's Motion.² I have reviewed the Parties' filings and find that no hearing is necessary. Local Rule 105.6 (D. Md. 2021). For the reasons outlined in this Memorandum Opinion, the Defendants' Motion to Dismiss is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs in this matter, who have filed their claims anonymously, are the adult parents of minor children who presently attend high school in the Montgomery County Public School system ("Parents" or "Plaintiff Parents"). Compl. ¶¶ 3-4. All three Parents also have younger children, who they intend to enroll in MCPS "at some time during their elementary and secondary education." Id. The Parents filed this action against MCBE and its members in the Circuit Court for Montgomery County, Maryland, on October 20, 2020, and MCBE removed it to this Court. Id.; ECF No. 1, Notice of Removal.

The Parents allege in their Complaint that MCBE has adopted a "Policy," i.e., the Guidelines, "expressly designed to circumvent parental involvement in a pivotal decision affecting" their children's "care, health education, and future." Compl. ¶ 2. The Parents allege that the Guidelines enable school "personnel to evaluate minor children about sexual matters and allow[] minor children, of any age, to transition socially to a different gender identity at school without parental notice or consent." Id. The Parents complain that the Guidelines "further require[] school personnel to enable this transition, including by using pronouns other than those consistent with the child's" sex assigned at birth.³ Id. The Complaint contains no specific allegations regarding the application of the Guidelines in counseling their own children, and the Parents do not allege that their own children are transgender or gender nonconforming. See generally id.

A. The Guidelines

The Parents attach a copy of the Guidelines, in their entirety, as Exhibit 1 to their Complaint. ECF 7-1, Guidelines. The first substantive page of the Guidelines includes the following introduction:

Montgomery County Public Schools [] is committed to a safe, welcoming school environment where students are engaged in learning and are active participants in the school community because they feel accepted and valued. To this end, all students should feel comfortable expressing their gender identity, including students who identify as transgender or gender nonconforming. It is critical that all MCPS staff members recognize and respect matters of gender identity; make all reasonable accommodations in response to student requests regarding gender identity; and protect student privacy and confidentiality. To assist in these efforts, MCPS has developed the following guidelines for student gender identity that are aligned with the Montgomery County Board of Education's core values, guidance from the Maryland State Department of Education, and the Montgomery County Board of Education Policy ACA, Nondiscrimination, Equity, and Cultural Proficiency, which prohibits discrimination, stigmatization, and bullying based on gender identity, as well as sex, gender, gender expression, and sexual orientation, among other personal characteristics. These guidelines cannot anticipate every situation which might occur. Consequently, the needs of each student must be assessed on a case-by-case basis.

Id. at 3.

Immediately following that introduction, the Guidelines identify the following "Goals":

• Support students so they may participate in school life consistent with their asserted gender identity;

• Respect the right of students to keep their gender identity or transgender status private and confidential;

• Reduce stigmatization and marginalization of transgender and gender nonconforming students;

• Foster social integration and cultural inclusiveness of transgender and gender nonconforming students;

• Provide support for MCPS staff members to enable them to appropriately and consistently address matters of student gender identity and expression.

Id.

As informed by that backdrop, the Guidelines go on to provide guidance and instructions on how MCPS personnel can provide support and resources to transgender and gender nonconforming students enrolled in Montgomery County Public Schools. The Guidelines address topics including: establishing a gender support plan; protecting student privacy; using the appropriate names and pronouns for transgender and gender nonconforming students; maintaining school records; dress code; participation in gender-based activities including physical education and school-based athletics; dealing with bullying and/or harassment of transgender and gender nonconforming students; and providing transgender and gender nonconforming students with designated safe spaces in their school buildings. Guidelines at 3-5.

Portions of the Guidelines explicitly anticipate parental involvement in developing a gender-support plan for transgender and nonconforming students. Other portions advise MCPS personnel to avoid disclosing a student's gender identity to their parents without the student's consent, particularly if the student has not yet disclosed their gender identity to their parents, or if the student either expects or knows their parents to be unsupportive. Those are the portions of the Guidelines that are primarily at issue in this case. They are reproduced below:

• GENDER SUPPORT PLAN:

• The principal (or designee), in collaboration with the student and the student's family (if the family is supportive of the student), should develop a plan to ensure that the student has equal access and equal opportunity to participate in all programs and activities at school and is otherwise protected from gender-based discrimination at school. The principal, designee, or school-based mental health professional (e.g., school psychologist or school counselor) should use MCPS Form 560-80, Intake Form: Supporting Students, Gender Identity, to support this process and assist the student in participating in school. The completed form must be maintained in a secure location and may not be placed in the student's cumulative or confidential files. While the plan should be consistently implemented by all school staff, the form itself is not intended to be used or accessed by other school staff members. Id. at 4.

• COMMUNICATION WITH FAMILIES:

• Prior to contacting a student's parent/guardian, the principal or identified staff member should speak with the student to ascertain the level of support the student either receives or anticipates receiving from home. In some cases, transgender and gender nonconforming students may not openly express their gender identity at home because of safety concerns or lack of acceptance. Matters of gender identity can be complex and may involve familial conflict. If this is the case, and support is required, the Office of School Support and Improvement or the Office of Student and Family Support and Engagement (OSFSE) should be contacted. In such cases, staff will support the development of a student-led plan that works toward inclusion of the family, if possible taking safety concerns into consideration, as well as student privacy, and recognizing that providing support for a student is critical, even when the family is nonsupportive. Id.

• PRIVACY AND DISCLOSURE OF INFORMATION:

• All students have a right to privacy. This includes the right to keep private one's transgender status or gender nonconforming presentation at school. Information about a student's transgender status, legal name, or sex assigned at birth may constitute confidential medical information. Disclosing this information to other students, their parents/guardians, or third parties may violate privacy laws, such as the federal Family Educational Rights and Privacy Act (FERPA). Id.

• Transgender and gender nonconforming students have the right to discuss and demonstrate their gender identity and expression openly and decide when, with whom, and how much to share private information. The fact that students choose to disclose their status to staff members or other students does not authorize school

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