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Tuesday, February 27, 2024

What the Constitution Says About Parents, Public Schools, and Students' Gender, and What it Doesn't (Yet)

[An expanded version of a piece which appeared in the Wichita Eagle and elsewhere on February 27, 2024.]

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler--arguably the best-known journalist in Wichita, Kansas’s largest city-- picked a fight with Kansas’s Attorney General Kris Kobach--arguably the best-known politician in the whole state--over essentially this exact problem, and Kobach--who, despite his protestations, has never been retiring when it comes to defending his beliefs--picked back. Both of them drag multiple ancillary issues into their argument, but let’s focus on the legal heart of their dispute, and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies which allegedly require teachers of students who identify as trans or non-binary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents' right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights. (In response, two school districts publicly changed their policies, while four others continued to defend them.)

With the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: while a bill was proposed in the Kansas legislature last year that would have extended parental rights in this exact context, it lacked the support to make it out of committee, and as a result, these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: what is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century (and most of which rested upon substantive definitions of "privacy" as central to personal "liberty," a claim which Dodd v. Jackson Women's Health Organization, the anti-Roe v. Wade decision, may have unintentionally (?) declared invalid, interestingly enough) have established that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns, and privacy. Moreover, other cases insist that parents have to demonstrate a harm which “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies which had been locally and legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point—a 2022 federal district court decision which forbade Geary County’s USD 475 from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’s Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

So ultimately, what is being fought about is unsettled law. I suspect that Kobach, ultimately, will end up being found correct, or at least mostly correct, in his interpretation by the Supreme Court--partly because of the contemporary dominance socially conservative justices enjoy on the Court, but also partly because some of these policies can be legitimately interpreted as requiring public school teachers to purposefully hide information from or even lie to parents, and the case law supporting parental rights, stretching back long before the current make-up of the Supreme Court, will make that possibility very difficult to uphold. But in any case, for now Kobach's his letter reflects broad cultural assumptions rather than controlling constitutional principles. So round one, I think, has goes to Lefler.