Lawyer: Manchester parents who don't like transgender policy can pull kids out of school
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Apr. 27—CONCORD — A dispute over parental and transgender rights moved to the state Supreme Court on Thursday, where a lawyer for the Manchester School District said parents can pull their children out of city schools if they disagree with the district's policy on transgender students.
Lawyer Meghan Glynn said a parent's constitutional rights can't be violated if parents have a "safety valve" they can exercise, such as home-schooling their children or sending them to private schools.
"If a parent wants to make a different choice for their child, they are well within their right. No one is precluding them from pulling their child from the Manchester School District," Glynn said.
Manchester schools Superintendent Jennifer Gillis, who was in the Supreme Court chambers, said she would not talk about the case until it concludes.
Glynn spoke as the Supreme Court heard oral arguments in a case brought by a mother who sued city schools over a policy that prevents school officials from revealing a student's transgender status to their parents.
The school district said it needs to provide a safe space for students and to respect their privacy interests. Concord lawyer Richard Lehmann, who is representing the mother, said the school's actions interfered with a parent's constitutional right and obligation to raise a child and meet their social and emotional needs.
The debate mirrors the one taking place this spring at the State House.
The House Education Committee deadlocked, 10-10, this week over a parental rights bill that would compel school officials to provide accurate information about a student once a parent requests it. The House narrowly rejected similar legislation last month.
The hearing Thursday took place before four judges. The fifth, Justice Anna Barbara Hantz Marconi, an appointee of Republican Gov. Chris Sununu, announced on Wednesday that she was recusing herself from the case. She gave no reason.
If the four remaining judges issue a 2-2 decision, Manchester schools will prevail because the trial judge, Hillsborough County Superior Court Judge Amy Messer, ruled in favor of the district.
The arguments
In the early going, Justice Gary Hicks, an appointee of former Democratic Gov. John Lynch, and Justice Patrick Donovan, a Sununu appointee, repeatedly asked Lehmann to spell out what parental right the Manchester policy violates.
Lehmann said a parent wouldn't be able to exercise their right to provide their child with medical care and counseling if the school withheld information. And a parent can't make the right school choice if denied information about what the school is doing, he said.
"We could be talking about 8-year-olds and still have government actors defer to whatever a child wants and decline parental rights," Lehmann said.
But the school district said parents already have access to information about a child's gender identity. The schools just aren't giving them confirmation.
"This policy allows parents for 80% of the week — kids are in school for 20% of the week — to have complete opportunity, uninterrupted by the school district, to have their conversations with the child," Glynn said.
Glynn said the schools may be forced to disclose gender identity in some cases — for example, if a child is bullied or is violating the school dress code.
Chief Justice Gordon MacDonald, a Sununu appointee, got Glynn to acknowledge that New Hampshire parents have stronger rights than those afforded by the U.S. Constitution. And she also acknowledged that transgender students face higher risks of sexual violence and bullying.
So it's conceivable, MacDonald reasoned, that the first a parent would know about their child's transgender decision was when they were bullied. Glynn said that's possible.
It generally takes two to six months for the Supreme Court to issue a ruling.
Representatives of both GLBTQ Legal Advocates and Defenders (GLAD) and the American Civil Liberties Union submitted filings in the case on behalf of the school district, and lawyers for the organizations attended Thursday's hearing.
The mother of the Manchester student, who filed under a pseudonym, was not at the hearing, Lehmann said.
Lehmann said he thought the hearing went well, and he said he doesn't make predictions based on questions from the justices, who interrupted each lawyer during their 15 minutes of argument.
"It's an awful lot to squeeze into 15 minutes," he said.
GLAD attorney Chris Erchull said the issue is whether parents can dictate how a school treats gender non-conforming students.
"Any parent who pays any attention to their child knows when they're going through identity development, including gender identity," Erchull said.
