As your children return to school, it is important that parents know that many people, including high-level judges, believe you relinquish your right to control your child’s education the moment your child crosses the threshold of the school door. In a barely-noticed July ruling, a U.S. District Court Judge in Oregon ruled that a transgender male student (girl who identifies as a boy) is allowed to use the boys’ locker room and bathroom – and by extension, biological males are allowed to use the female locker and bathroom facilities.
According to Federal Judge Marco Hernandez, it is within a parent’s right to remove their child from a school if they disapprove of their child sharing facilities with a member of the opposite sex, but: “Once the parents have chosen to send their children to school, their liberty interest in their children’s education is severely diminished.” (See the entire ruling here.)
So here’s how it works according to Judge Hernandez: You as a parent(s) get to select the public school, and pay taxes for that school; but once your child enters that school, your parental rights are “severely diminished.” If you disagree with the school’s policy, your only recourse is to send your child to a private school and pay even more money for your child’s education.
For his ruling, Judge Hernandez drew from prior rulings, particularly those coming from the 9th Circuit Court of appeals (Fields v. Palmdale 2005), where that court recognized that “the right of parents to make decisions concerning the care, custody and control of their children is not without limitations.” Judge Hernandez continued:
As the Ninth Circuit explained in Fields, Parent Plaintiffs’ Fourteenth Amendment liberty interest in the education and upbringing of their children “does not extend beyond the threshold of the school door.”
Privacy rights for me, but not for thee…
According to Judge Hernandez, for a student to “see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions in a restroom, shower, or locker room does not give rise to a constitutional violation.”
There seems to be a general lack of concern for the privacy rights and feelings of most students. Judge Hernandez even acknowledges that there is stress caused by the presence of a person of the opposite biological sex in an intimate setting. He cites a Third Circuit Court ruling recognizing “that cisgender [non gender confused] plaintiffs may experience a certain level of stress due to transgender students’ presence in school facilities, but that stress was not ‘comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity.’”
While we feel compassion for the challenges of a student who struggles with gender dysphoria, the court is ignoring the concerns of the vast majority of the students while privileging the concerns of less than one percent of the student body.[i] No student should be forced into an intimate setting – like a bathroom or locker room – with a student of the opposite sex.
Schools, rightly, have been aware and sympathetic to the privacy needs of students who identify as transgender. Private facilities have been made available to any student who does not feel comfortable in traditional sex-separate facilities. Those who identify as transgender generally refuse to use the offered private facilities. Nevertheless, the privacy, safety, and dignity of each and every student must be protected and the schools must never lose sight of the parents’ right to be involved in determining what is appropriate for their child.
Kevin Theriot, Alliance Defending Freedom, correctly states:
“[S]chools can accommodate the desires of a small number of students without compromising the rights of other children and their parents. Any privacy and safety policy should respect all children because every child matters. No policy should be tailored to a few students at the expense of all the others.”
Do parents have the right to oversight on the values their child is taught at school?
Judge Marco Hernandez would answer a firm “No” to that question. According to the Oregon ruling, the school – not you the parent – should be the primary purveyor of values. He cites “our Nation’s deeply rooted history and tradition” of ensuring that schools and school administrators are not “unduly constrain[ed] from fulfilling their role as a principal instrument in awakening the child to cultural values…” and in helping a child “adjust normally to his or her environment.”
The ruling gives no background, examples, or footnotes citing the origins of this “deeply rooted history and tradition,” however. As parents we are left to wonder as to our role beyond bringing our children into the world, feeding and clothing them and then turning them over to the local school administrator.
Parental Rights: Know what they are
Fortunately, this is just one ruling from a U.S. District Court in Oregon; this issue is far from settled. But as parents, we cannot afford to be complacent and disengaged. Your parental rights are being threatened and awareness and education is the first step in protecting yourself and your children.
The Universal Declaration of Human Rights (Article 26-3) states “Parents have a prior right to choose the kind of education that shall be given to their children.” Numerous other international documents restate this critically important principle. (CRC, Article 18-1, ICCPR, Article 18-3)
At the time the U.S. Department of Education was created, the U.S. Congress enacted law that states: “parents have the primary responsibility for the education of their children” and “states, localities, and private institutions have the primary responsibility for supporting that parental role.” Some states have very well-defined parental rights laws often appearing in the state statues as “Parental Bill of Rights” laws.
The pro-parental rights legal counsel at Alliance Defending Freedom has created a general list that will help you navigate these difficult waters. As a parent, you have the right to:
- Choose the school environment that best fits your child’s needs, whether public school, charter school, private school, or homeschool.
- Depending upon where you live, opt your child out of curriculum that would force them to violate your family’s religious beliefs.
- Depending upon where you live, review the curriculum and teaching materials for any of your child’s classes.
- Opt your child out of any extracurricular activity.
- Depending upon where you live, be notified if your child is enrolled in a course that includes sex ed, family planning, homosexual themes, diversity issues, or extreme violence.
- Access your child’s record, including grades, disciplinary, and counseling proceedings.
- Remove your child on days of religious observance.
- Depending upon where you live, receive the same tax credits and vouchers to attend religious schools available to attend non-religious schools.
Vigilance is the price of protecting your children and your rights as a parent.
Be involved in your school; know your student’s teachers and administrators; monitor what goes on at school board meetings (this is where controversial decisions are made). Be sure to review your child’s curriculum, text books and assignments (especially anything to do with health or sexuality education), be aware of sports programs and their implementation. Assume nothing; do not make the mistake of assuming that things are just like when you went to school. They’re not.
The really good news is: You’re not alone in this effort. Join with like-minded parents and organizations that support your values. Your children deserve the love, care and guidance that only a parent can provide. No one cares more about your child than you do. Let’s work together to remind those who seem to have forgotten that simple truth.
[i] The prevalence of gender dysphoria is 0.005-0.014% for adult born as males, whereas it is 0.002-0.003% for adult born as females. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, VA, American Psychiatric Association, 2013 (p.451-459).