Lawyer challenges motion to dismiss Manchester mom's lawsuit over district's transgender policy

Jul. 12—The attorney representing a Manchester mother suing city schools over a policy that prevents officials from informing parents about their child's "transgender status" at school without the student's permission is asking a judge to toss out the district's request the lawsuit be dismissed.

In legal filings made at Hillsborough Superior Court North, attorney Demetrio Aspiras with Drummond Woodsum & MacMahon, representing the Manchester School District, claims 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 states.

"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 states.

Concord-based attorney Richard Lehmann is representing the Manchester mother in the lawsuit. He says this is not a case in which a parent believes that the school curriculum is morally offensive or burdens the parental right to direct the education of a child.

"The only things the plaintiff challenges here are the fact that the policy creates a presumption that it defer to the student's choice of gender expression and the student's choice of whether to permit his or her parents to be advised of the student's in-school gender expression," writes Lehmann in his response to the district's motion to dismiss.

Lehmann argues the district's policy is far broader and "substantially more intrusive upon parent rights" than necessary to prevent discrimination against transgender or gender non-conforming students, and should be found to be unconstitutional.

Lehmann writes it's not difficult to imagine other scenarios related to "important child-rearing priorities of parents" that could arise in society that children might seek to avoid.

"If a Hindu parent advises a school that she wishes to raise her son as a vegetarian, or an Orthodox Jewish parent wishes his daughter to keep a kosher diet, would a school be justified in misleading parents about a child's in-school diet?" asks Lehmann in court filings. "And what of atheist parents who state a wish to raise their child without a belief in God who become aware that the child is participating in voluntary school prayer?"

"All of these acts are constitutionally protected and potentially entitled to privacy. But when a school affirmatively acts in ways that hide these kinds of facts from parents, they violate the parent's rights to direct the upbringing of their children, to become engaged in the child's development, and to exercise their right to provide guidance."

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 fact 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 M.C.'s 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 plaintiff wants 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.

In March, the Manchester 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.