Wisconsin’s Eau Claire Area School District’s so-called gender-identity policy is a big middle finger to the basic principles of parental rights. Now a group of parents is fighting back in a case testing the limits of public education power: whether school districts can keep secrets about the children they are educating.
This week, the Wisconsin Institute for Law and Liberty (WILL) and America First Legal filed a petition of certiorari asking the U.S. Supreme Court to take up Parents Protecting Our Children v. Eau Claire Area School District. The lawsuit, originally filed in 2022 in federal district court, alleges the public school system has put in place a policy “to facilitate gender identity transitions at school and to keep this hidden from parents who would disagree that it is in their child’s best interest to change gender identity.”
The district court and the Seventh Circuit U.S. Court of Appeals dismissed the case. In the appellate court ruling, Appellate Court Judge Michael Scudder wrote that the parents clearly “harbor genuine concerns about possible applications of the School District’s policy,” but none of the parents suffered harm because of the policy.
“No doubt Parents Protecting’s allegations punch with conviction and concern,” the judge wrote. “But nowhere does the complaint allege that even one of the association’s members — any particular parent — has experienced an actual or imminent injury attributable to the Administrative Guidance or a Support Plan.”
But the parents are directly affected by the pro-transgender policy, WILL notes in the appeal to the Supreme Court. It’s a policy of secrecy that could keep them in the dark about a matter of urgent parental concern. And the erosion of parental rights through similar school policies is happening nationwide, the court filing asserts.
“Thousands of school districts across our country have these policies. If parents cannot challenge them until after their children are harmed, they have no way to protect their kids other than pulling them from public school,” said Luke Berg, deputy counsel for the Milwaukee-based conservative public interest law firm.
‘School Is Now Like Las Vegas’
Parents Protecting Our Children, all of whom have children enrolled in the Eau Claire school district, “do not want the District and do not want school district staff making decisions about their own children that are kept secret from them,” the lawsuit states.
In the appeal to the high court, the parents ask a critical legal question: “When a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — do parents who are subject to such a policy have standing to challenge it?”
WILL argues that the case, and others like it, represents “one of the most significant failures of the federal judicial system in our lifetime.”
“School districts across the country — by one count, over 1,000, covering nearly 11 million students — have adopted policies to facilitate minor students, often of any age, changing their gender identity at school (names, pronouns, and bathroom use) in secret from their parents,” the court filing states. “Many of these policies, like the Eau Claire School District’s, prohibit teachers from discussing with parents what is happening with their own child at school and even require staff to actively hide things from parents.”
“School is now like Las Vegas: ‘What happens at school stays at school,'” the petition contends, urging the Supreme Court to consider the national implications. “These policies have already generated over two dozen lawsuits … with many more to come.”
‘I’m Your Mom Now’
According to the Eau Claire public school system’s Administrative Guidance for Gender Identity Support, updated in late 2021, the district seeks “1) to foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression; and 2) to facilitate compliance with district policy.”
The so-called guidance document requires educators and staff to “inquire which terms [names and pronouns] a student may prefer and avoid terms that make the individual uncomfortable; a good general guideline is to employ those terms which the individual uses to describe themself.” District employees also should inquire about what bathroom and locker room the trans student prefers, which sex-specific athletic team the student wishes to join, and which “transition plan” — social, medical, surgical — the trans student is comfortable with.
“Some transgender, non-binary, and/or gender-nonconforming students are not ‘open’ at home for reasons that may include safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent/guardian,” the policy states.
Eau Claire North High School drew national attention in 2022 after a staff member reportedly posted a sign on the school’s door declaring, “If Your Parents Aren’t Accepting Of Your Identity I’m Your Mom Now.”
As Newsweek reported at the time, Eau Claire teachers the month before had been required to attend an “equity” professional development day addressing “Safe Spaces.” The event included a slide instructing teachers that “…parents are not entitled to know their kids’ identities. That knowledge must be earned.”
Eau Claire Area School District Board President Tim Nordin told Wisconsin Public Radio in March that the district policy has remained unchanged since the lawsuit was first filed.
“We remain convinced that not only is this supportive for students and for families, but that it’s fully within the rights of the students and families,” Nordin said. “We’re going to continue to support them as best we can.”
‘Constitutional Right’
But parents have primary rights in the lives of their children that certainly extend to the classroom, WILL and America First Legal argue in the petition before the Supreme Court. The petition notes the court has repeatedly recognized parents have a “fundamental constitutional right to make decisions concerning the rearing of [their] own [children].”
“As any parent knows, parental authority includes the right (and the solemn responsibility) to say no to children’s often short-sighted desires when necessary to protect them from themselves,” the petition argues, noting that even the Biden administration’s recent identity politics-driven Title IX rule eschews the kind of policies Eau Claire schools have emphasized. The federal rule says that “nothing in the final regulations disturbs parental rights,” and that “When a parent and minor student disagree” — about the “name or pronouns used at school,” for example — “deference to the judgment of a parent … is appropriate.”
WILL has been at the forefront of the parental rights battle. The law firm was engaged in a lengthy court fight over the Madison Metropolitan School District’s so-called gender identity policy. The case went to the Wisconsin Supreme Court, where it was ultimately dismissed because the mother who was the plaintiff in the case decided not to send her child to a Madison district school. So she lost standing in the lawsuit. The dismissal had nothing to do with the merits of the case.
