The Supreme Court turned away a challenge on Dec. 9 to a Wisconsin school district’s policy of allowing students to undergo gender identity transitions without informing parents.
Three justices voted to hear the case, but four votes are needed under court rules to schedule oral arguments.
Twenty-six states have enacted laws banning transgender treatments on minors. Some also require that school sport participation be based on biological sex, require gender-specific bathrooms, and prohibit children’s attendance at drag shows. Other states have passed laws protecting gender treatments for minors.
A federal district court threw out the Wisconsin case in February 2023, ruling that Parents Protecting Our Children lacked legal standing to challenge the policy. In March 2024, the U.S. Court of Appeals for the Seventh Circuit affirmed.
“The District even trained all of its staff that ‘parents are not entitled to know their kids’ identities. That knowledge must be earned,’” the group stated.
The petition said the Supreme Court found in Troxel v. Granville (2000) that parents possess a “fundamental constitutional right to make decisions concerning the rearing of [their] own [children].”
The court also ruled in Parham v. J.R. (1979) that a government body attempting to “supersede parental authority” violates the Constitution and is “repugnant to American tradition.”
The Supreme Court should accept the Eau Claire case to show that “parents subject to such policies have standing to challenge them,“ the petition said. ”If they do not, federal standing law has truly gone off the rails.”
The group has acknowledged that it filed its lawsuit “as a facial pre-enforcement challenge to invalidate the entirety of the [school district’s] new policy,” the brief said.
Moreover, the group “grossly mischaracterized” the administrative guidance on the policy, “relying on its own speculative interpretation rather than what the document says.”
The guidance envisions the creation of a “Gender Support Plan” to support educational needs and ensure that a student “has access and opportunity to participate in the District’s educational programs and activities.”
The brief said the district keeps gender support plans “in a student’s permanent pupil records file,” which is “always available to their parents.”
Justice Brett Kavanaugh indicated that he would grant the group’s petition but did not explain why.
Alito wrote: “Parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative.’ They are merely taking the school district at its word.”
Alito also said he was “concerned that some federal courts are succumbing to the temptation” to view standing doctrine “as a way of avoiding some particularly contentious constitutional questions.”
While courts must respect “the limits of their constitutional authority, it is equally important that they carry out their ‘virtually unflagging obligation ... to exercise the jurisdiction given them,'” he wrote, citing the 1976 precedent of Colorado River Water Conservation District v. United States.
