Attorneys for the state and a Hunterdon County school district are hitting back at a parent’s lawsuit challenging statewide guidance on transgender students. (Photo by Alexander Castro)
Parents’ constitutional right to raise their children how they want does not give them authority over school policy, attorneys for the state and a Hunterdon County school district argue in new court filings defending state guidance on transgender students.
The filings are the latest development in an escalating legal battle that started in January 2024 when Christin Heaps of Pittstown sued his daughter’s school, the Delaware Valley Regional High School in Frenchtown, after he learned school officials agreed to the child’s request to use a male name and pronouns without telling him.
Heaps wants a judge to strike down Policy 5756, the guidance state education officials issued in 2018 that advises districts they can accept a student’s change in gender identity without notifying parents. A federal judge has twice ruled against Heaps. He’s now appealing his case to the U.S. 3rd Circuit Court of Appeals with the help of the Alliance Defending Freedom, a conservative Christian legal advocacy group.
Attorneys Roshan D. Shah and Ashu Verma represent the district and school board. In a Tuesday brief, they agree that the right of parents in the care and custody of their children is one of the oldest of the fundamental liberty interests encompassed by the Constitution’s due process clause.
“However, the historical analysis of how far this right extends does not support the broad power that Heaps believes he wields — i.e., the power to dictate the school environment and the policies governing it,” they added.
Neither the Constitution nor court precedents give parents the right to “notice and veto power over a high-school-aged student’s preferred pronouns or name,” they wrote. Heaps ignores that parental rights must be balanced with a child’s right to privacy, they added.
“Heaps’s position leaves no space for this balancing. He ignores that the desire to maintain confidentiality originated with Jane,” they wrote of Heaps’ daughter, who’s identified as Jane Doe in filings. “His argument effectively demands that school officials ignore the student’s request in all instances no matter the consequences. The Constitution doesn’t impose such a Hobson’s choice upon school officials.”
Attorneys for the state argued in a Tuesday brief that Heaps’ belief in the supremacy of parental rights, if applied to school policies universally, would wreak havoc in schools. They gave examples of students secretly eating school lunches of chicken nuggets when their parents are vegetarian, changing into skirts once they got to school when parents object to such clothing, or asking to go by their middle name in school.
“On Heaps’s expansive view of substantive due process, and without a limiting principle, a school would risk infringing the parent’s constitutional rights any time it honored these students’ requests over the parent’s objections,” attorneys from Attorney General Matt Platkin’s office wrote. “Educators would be subject to disruptive and inconsistent demands, undermining uniformity and predictability at school.”
They pointed to a 1948 landmark decision, McCollum v. Board of Education, that barred religious instruction in public schools. The U.S. Supreme Court in that case decreed: “if courts were ‘to eliminate everything that is objectionable to any [group] or inconsistent with any of their doctrines, we will leave public education in shreds.’”
It’s unclear “how a court could decide that one parent’s views on gender identity have greater weight than another’s on vegetarianism, modest dress, or sci-fi novels,” the attorneys wrote.
Heaps also had argued that the school’s policy interfered with his right to direct his child’s medical care. She has been diagnosed with depression, high-functioning autism, and anxiety, and Heaps told the court she was in therapy.
But that “therapy” was provided by a pastoral counselor with no medical license, Shah and Verma noted. The state’s attorneys also argued that the child wasn’t diagnosed with a mental health condition related to gender identity, and calling someone by their preferred pronouns is not medical care.
“The school has not made any medical decision for Heaps’s child or taken away any medical decision from Heaps. The school merely decided not to disregard the student’s voluntary request to be addressed by a particular name and pronouns,” they wrote. “Accepting Heaps’s capacious view of medical care would have destabilizing consequences. If addressing a student by a different name and pronouns (on the student’s own request) is medical care, teachers or school officials would be required to have a medical license to honor that request, even if a parent consented.”
The state has repeatedly tried to get the case tossed as moot because Heaps now homeschools his child, and attorneys on both sides of the fight have said she no longer wants to socially transition.
U.S. District Judge Georgette Castner has denied that request, writing in November that the case is not moot because Heaps wants his daughter to return to the 700-student school, where the policy remains in place and would be enforced.
But Shah and Verma challenged that logic, saying Heaps’ attorneys have said his child has not wanted to change her identity for over a year. Gender identity is neither transitory nor temporary, they added.
“The District Court’s decision effectively rests on the assumption that Jane is likely to flip a switch and seek to socially transition when back in school, thereby reviving Heaps’s concerns and alleged injury,” they wrote. “But such an assumption rings hollow and treats Jane’s gender identity as continually fluid. There is no evidence to support such a belief.”
The appellate court has not scheduled oral arguments in the case.
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