Judge dismisses Manchester mom's lawsuit over school district's transgender policy
Sep. 21—A judge has dismissed a lawsuit filed by a Manchester mother against city schools over a policy that prevents officials from informing parents about their child's "transgender status" without the student's permission, ruling the protocol doesn't infringe on parents' fundamental rights.
Hillsborough County Superior Court North Judge Amy Messer wrote in her decision the right to make decisions about the care, custody and control of one's child is not absolute.
"While the defendants concede that the plaintiff has a fundamental right to raise her child as she wishes, they assert that the plaintiff's right to parent does not include the ability to direct how the school teaches her child," Messer wrote. "The court rejects the plaintiff's argument that the policy violates her fundamental right to parent."
Concord-based attorney Richard Lehmann, who is representing the Manchester mother in the lawsuit, said his client plans to appeal the decision.
"We believe that the court's decision takes an unduly narrow view of the rights of parents to raise their children and fails to properly consider how those rights are infringed by Manchester's policy of hiding a child's in-school behavior from his or her parents," Lehmann said. "We look forward to bringing an appeal to the New Hampshire Supreme Court raising this and other issues that we think the court got wrong."
School officials declined to comment on the ruling.
In a motion to dismiss the lawsuit, attorney Demetrio Aspiras of Drummond Woodsum & MacMahon, representing the Manchester School District, said city schools have no obligation to inform parents when a student uses a name or pronoun that does not conform to the name and gender assigned at birth, claiming "no such duty or obligation exists."
"(T)his motion can be easily resolved by answering one discrete question: Do school districts have a legally enforceable duty to inform parents when a student uses a name or gender pronoun different than that assigned at birth? Because the answer to this question is no, the complaint should be dismissed," the motion stated.
"Whatever the scope of a parent's rights vis-a-vis their transgender or gender-nonconforming children, they do not include the right to force a school district to act as a conduit for the parent's exercise of those rights in this fashion," the motion stated.
Basis of lawsuit
In the lawsuit, a Manchester woman identified as Jane Doe said her minor child, identified as M.C., asked teachers and students last fall to address the child by a name typically associated with a gender different from M.C.'s sex at birth.
Jane Doe became aware of this through an inadvertent disclosure by one of M.C.'s teachers, according to the lawsuit.
Jane Doe communicated with her child's guidance counselors and others at the school that she would like her child to be treated according to birth gender, to be addressed by the name on the district's mandatory permanent record and to be referred to with pronouns corresponding to the student's biological sex.
According to the filing, Jane Doe received an email from the school principal saying, "while I respect and understand your concern, we are held by the district policy as a staff," which "outlines the fact that we cannot disclose a student's choice to parents if asked not to."
The mother wanted a judge to declare the policy unconstitutional, issue an injunction prohibiting the Manchester School District from enforcing or training staff to enforce the policy, set damages and order the district to pay her attorney fees.
Adjustments to policy
In March, the school board approved changes to the policy.
The policy originally read, "School personnel should not disclose information that may reveal a student's transgender status or gender nonconforming presentation to others, including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure."
The approved change removes the phrase "including parents and other school personnel," and adds a section at the end saying, "Nothing herein shall be construed to change the obligation of the school to take action when student safety is concerned."
In May, a highly charged bill, HB 1431 — which would have given parents more explicit rights to be told when school officials take actions to deal with a child's "gender identity" or "sexual orientation" — was narrowly defeated in the House of Representatives.
