Portions of a Madison Metropolitan School District guidance document on transgender students are on hold after a judge issued a temporary injunction in the case Monday.
Conservative-advocacy group Wisconsin Institute for Law and Liberty filed the case in February on behalf of 14 anonymous parents to challenge the MMSD “Guidance & Policies to Support Transgender, Non-binary & Gender-Expansive Students” document created in 2018. Specifically, the parents — eight of whom have withdrawn since the case began — requested the court rule against district guidance that staff not tell parents about a student’s preferred name or pronoun at school without the student’s permission and require parental consent for a school to help facilitate a gender transition.
Monday’s ruling by Circuit Court Judge Frank Remington forbids the district from “applying or enforcing any policy, guideline, or practice” in the document that “allows or requires District staff to conceal information or to answer untruthfully in response to any question that parents ask about their child at school, including information about the name and pronouns being used to address their child at school.”
“I think it’s a great win," Luke Berg, an attorney for the parents, said in an interview. "It sends a pretty clear warning to the district that its policy is problematic.”
In an emailed statement, MMSD spokesman Tim LeMonds wrote that MMSD would follow the court's injunction and stressed that the document is not a policy approved by the School Board but only guidance.
"The District has not and does not construe or interpret the guidance to support or encourage MMSD officials to misrepresent or conceal anything from parents, and the Court did not otherwise require MMSD to change its existing approach," LeMonds wrote. "MMSD prioritizes working in collaboration with families to support our students and it is always our preferred method of support. MMSD will continue to prioritize the safety and wellbeing of every individual student to the best of our ability."
The court previously ruled the parents had to disclose their identity to the district, but they appealed that ruling. Monday's injunction comes as that appeal continues, with Remington writing they did not demonstrate a likelihood of success in their argument for anonymity.
“Although the court understand(s) why Plaintiffs desire to remain anonymous, anonymous plaintiffs effectively deny the Defendants and the Intervenors the ability to engage in discovery or to otherwise respond to the facts presented by the Plaintiffs in their motion as to the Plaintiffs themselves,” Remington wrote. “By remaining anonymous and by asking this court to make evidentiary findings regarding irreparable harm or an adequate remedy unfairly deprives the Defendants a meaningful opportunity to challenge Plaintiffs’ factual assertions.”
Berg said he believes the identities of the parents don't affect the district's ability to argue the legality of its guidance document.
The initial complaint alleged the guidance violates the constitutional rights of the parents to “direct the upbringing up their children.”
“The Madison Metropolitan School District has violated this important right by adopting a policy designed to circumvent parental involvement in a pivotal decision affecting their children’s health and future,” the complaint states. “The policy enables children, of any age, to socially transition to a different gender identity at school without parental notice or consent, requires all teachers to enable this transition, and then prohibits teachers from communicating with parents about this potentially life-altering choice without the child’s consent.”
In a Jan. 31 letter from MMSD, responding to WILL’s public threat of a lawsuit, interim general counsel Sherry Terrell-Webb wrote that the guidance is "a manner of working with and being sensitive to our community members who identify as transgender, non-binary, and gender expansive youth."
The guidance states that families can be “essential” in supporting LGBTQ+ students, but also advises staff to use a student’s legal name and gender pronoun in communicating with families even if they know the student prefers a different name or pronoun.
“We believe that families love their children, have incredible dreams for them, and hope to keep them safe from harm,” it states. “We know that family acceptance continues to have a profound impact on the physical and mental health outcomes of our LGBTQ+ young people. In MMSD, with the permission of our students, we will strive to include families along the journey to support their LGBTQ+ youth.”
It specifically prohibits staff from disclosing “any information that may reveal a student’s gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure.”
“Transgender, non-binary, and gender-expansive students have the right to discuss and express their gender identity and expression openly and to decide when, with whom, and how much to share private information,” the guidance states. “If a student chooses to use a different name, to transition at school, or to disclose their gender identity to staff or other students, this does not authorize school staff to disclose a student’s personally identifiable or medical information.”
Student groups from three of the district’s four comprehensive high schools joined the lawsuit to defend the guidance document. The Gender Equity Association at Memorial and the Gender Sexuality Alliances from West and La Follette are all “intervenors” in the case.
The Memorial group began rallying support of the guidance after WILL’s lawsuit threat last fall, and two of its leaders said this spring that the guidance is an essential protection for student rights, especially at a time that can be challenging even with parental support.
“It’s just incomprehensible to me that anyone would target these rights and do it with not a care about the students, about kids,” Memorial student Amira Pierotti said in a January interview. “This (lawsuit) isn’t for the betterment of others, this is because you are scared that you don’t know what’s going on with your kids and that you’re afraid they’re trans or gender-expansive because you are transphobic.”
Berg encouraged any parents who are concerned about their child's gender identity to ask their teachers, as the injunction means "the school now can't lie to you."
"They don't have to reach out to you and they won't notify you if your child is dealing with this, but they can't lie if you ask directly," Berg said. "Parents should just be ever-vigilant and paying attention to what's going on with their kids as they always should and ask their school if they have concerns."
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