Parental Preclusion Policies: Do Parents Have Standing to Challenge Them Before Enforcement? – S. Ernie Walton
Parental Preclusion Policies: Do Parents Have Standing to Challenge Them Before Enforcement?
S. Ernie Walton*
Introduction
The parent-child relationship is a bedrock of American civilization. Blackstone called it the “most universal relation in nature,”[1] and the Supreme Court has declared that the “primary role of the parents in the upbringing of their children is [] established beyond debate as an enduring American tradition.”[2] This “primary role” includes the right to “direct” their children’s “religious upbringing,”[3] moral formation, and overall education.[4] On the flipside, based on principles of “natural justice and retribution,” children owe their parents duties of “subjection and obedience” “during [their] minority, and honor and reverence ever after.”[5] Indeed, “to honor and obey” one’s parents is “one of the earliest and most sacred duties taught” to American children.[6] To enforce these rights, parents are given the power to “lawfully correct” their children “in a reasonable manner.”[7] Preserving this right is justiciable.[8]
While the parent-child relationship is a bedrock of American civilization, the doctrine of standing is foundational to separation of powers: “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”[9] Standing ensures that the courts stay in their “designated lane” by preventing them from usurping the power of the people to act through their elected representatives. To prevent this power grab, federal courts must conduct a “rigorous” inquiry[10] into whether the plaintiff has a “concrete, particularized, and actual or imminent” injury.[11] If no such injury can be found, the case must be dismissed for lack of jurisdiction.
Today, “parental preclusion policies,”[12] by which school districts facilitate the social gender transition of students at school without parental consent or knowledge, have seemingly put these two pillars of constitutional government in direct conflict. The conflict, at least to this point, has involved a zero-sum game in which one principle must be destroyed that the other might live. The doctrine of standing has emerged the victor—and decisively. Both federal courts of appeal that have considered the constitutionality of parental preclusion policies have found a lack of requisite standing,[13] and the Supreme Court denied cert in both cases.[14]
But is this winner-take-all view correct? Must we sacrifice the parental-child relationship on the altar of Article III’s “Case or Controversy” requirement?[15] Although well-intentioned, the courts have gotten it wrong. Parental preclusion policies harm parents and their children in a direct, imminent, and concrete manner. Federal courts must use the authority granted to them by the “People” through Article III to vindicate the fundamental right of parents to direct the upbringing of their children.[16] And courts need not twist, stretch, or discard the doctrine of standing to vindicate the fundamental rights of parents. On the contrary, a closer examination of the effect these policies have on the parent-child relationship reveals that parents do have standing to challenge these policies under existing precedent, even before enforcement.
I. Parental Preclusion Policies Explained
By way of example, consider the Montgomery County Board of Education “Guidelines for Gender Identity” (Parental Preclusion Policy).[17] The Guidelines declare that “all students should feel comfortable expressing their gender identity, including students who identify as transgender or gender nonconforming.”[18] With this “truth” asserted, the Guidelines aim to ensure that all students “may participate in school life consistent with their asserted gender identity” and “keep” this identity “private and confidential,” including from their parents.[19] To fulfill these twin goals, school officials are charged with creating “gender support plans.”[20] Specifics for the plans include “identified name; pronouns; athletics; extracurricular activities; locker rooms; bathrooms; safe spaces, safe zones, and other safety supports; and formal events such as graduation.”[21]
Critically, the Guidelines direct school officials to “withhold information about a student’s gender support plan ‘when the family is nonsupportive.’”[22] Summarizing this part of the policy, the Fourth Circuit stated that “[t]he Guidelines allow implementation of these plans without the knowledge or consent of the students’ parents” and “even authorize the schools to withhold information about the plans from parents if the school deems the parents to be unsupportive.”[23] In essence, this means that a biologically female child could live out an entirely male identity at school—including using a male name, pronouns, bathrooms, and dress—and the child’s parents would have no clue.
The Montgomery County policy, which is representative of the estimated 1,143 such policies across the nation that cover more than twelve million children,[24] violates the fundamental right of parents to direct their children’s upbringing and moral formation.[25] Gender identity ideology touches on the deepest moral, social, and religious questions, even going to the heart of what it means to be human. In the American constitutional order, these questions are reserved for parents, and the state has no right to “instruct” children in this ideology, let alone facilitate the transition of children to different genders behind parents’ backs. But at what point do parents have standing to challenge these policies? Must they wait until their children have already begun transitioning?
II. Standing in Parental Preclusion Policy Cases
Clapper v. Amnesty Int’l USA is the seminal standing case that has thus far prevented parents from being able to challenge these policies on the merits. Clapper held that the plaintiffs, Amnesty International and other human rights organizations, lacked standing to challenge section 702 of the Foreign Intelligence Surveillance Act.[26] Section 702 authorized the government to acquire “foreign intelligence information” from individuals who are “not United States persons and are reasonably believed to be located outside the United States.”[27] Plaintiffs’ alleged that they had standing to challenge the constitutionality of section 702 because there was an “objectively reasonable likelihood” the government would intercept their communications “at some point in the future.”[28]
The Court rejected this argument, holding that plaintiffs’ theory depended upon a “speculative chain of possibilities” that rested upon “the decisions of independent actors.”[29] That tenuous chain included the following links: that the government would “imminently target communications” involving the plaintiffs’ foreign contacts; that that targeting would employ section 702 and not another means of surveillance; that a FISA court would authorize such surveillance; and that even if authorized, the government would succeed in obtaining the communications of plaintiffs with those foreign contacts.[30] Because of this tenuous chain of events, which depended upon the decisions of many third parties, plaintiffs’ alleged injury was neither “certainly impending” nor “fairly traceable to [FISA].”[31]
Relying primarily on Clapper, the Fourth Circuit, in John and Jane Parents 1 v. Montgomery County Board of Education, held that a group of parents lacked standing to challenge the constitutionality of the Montgomery County Gender Identity Guidelines, discussed above.[32] The Fourth Circuit asserted that standing “requires either a current injury, a certainly impending injury, or substantial risk of a future injury.”[33] The parents failed to allege a current injury because they did not allege that any of their children had gender support plans or even had discussions with school officials relating to gender.[34] Similarly, the parents failed to allege an impending injury or substantial risk of future harm because the most the parents could assert was that their children “might soon be” subject to a gender support plan that is hidden from them—an allegation far too “attenuated” to satisfy Clapper.[35] Recounting the tenuous chain at issue in Clapper, the court noted that the plaintiffs’ claims were similarly speculative:
(1) their minor children must determine they identify as transgender or gender nonconforming, (2) their minor children must decide they want to approach the school about a gender support plan, (3) the school must deem the parents unsupportive and (4) it must then decide to keep the information about their children from them.[36]
The Seventh circuit likewise held that a group of parents lacked standing to challenge a similar parental preclusion policy in Parents Protecting Our Children, UA v. Eau Claire School District.[37] Analogizing the parents’ situation to Clapper, the court held that the parents lacked standing because they did not allege “that any parent has experienced actual injury or faces any imminent harm attributable” to the parental preclusion policy.[38] Instead, their allegations were mere “expressions of worry and concern” that could not establish a “Case or Controversy” sufficient to satisfy the strict jurisdictional requirements set forth explicitly and implicitly in Article III. [39]
The Supreme Court denied certiorari in both cases.[40] In Eau Claire, Justices Kavanaugh, Alito, and Thomas dissented.[41] Notably, Justice Alito, the very author of Clapper, filed a dissent, explaining that lower courts were misinterpreting Clapper and using it as an illegitimate offramp so they could avoid addressing serious constitutional issues.[42] Is Justice Alito right? Is there another theory of standing that would allow parents to vindicate their rights and stop their children from being transitioned before it starts?
III. Analysis
Justice Alito is correct under a straightforward reading of Clapper. Because the policy (and accompanying training) “specifically encourage school personnel to keep parents in the dark about the ‘identities’ of their children, especially if the school believes that the parents” are deemed unsupportive, the parents’ fears are hardly “speculative.”[43]
But it’s unclear how many justices share this view. Unless something changes, for example, a parent alleges that a child was counseled to change genders or was the subject of a gender support plan, the zero-sum game will likely continue. The courts will continue to fortify one pillar of liberty while another[44] gets torn down. But that need not be true. Parents do have standing to challenge these policies—even before their children are the subject of a gender support plan.
Thus far, the standing analysis has centered on the lack of actual enforcement of the parental preclusion policies regarding the children of the plaintiffs.[45] Because the plaintiff parents did not allege that any of their children were the subject of a gender support plan or were even considering “changing” their genders, the courts have reasoned, the parents did not suffer an actual injury. From one perspective, this makes sense. Standing requires an injury that is “fairly traceable to the challenged action,”[46] which in this case is the parental preclusion policy. Naturally, then, the courts (and plaintiffs) have focused on whether the allegations involved actual enforcement of the policy against the parents’ children, including an analysis that the plaintiffs’ children identify as transgender.
But parental preclusion policies can, and do, cause harm by their very existence.[47] Rather than focus on actual enforcement of the policy, parents should focus their allegations on the effects the policies themselves have on their relationship with their children. Assuming their children are aware of the policy, that awareness alone alters the child’s relationship with his or her parents. By claiming authority to transition children at school—all without parental knowledge or consent—the state has inserted itself into the middle of the constitutionally protected parent-child relationship, pitting parent against child and state against parent. After learning of the policy, children will inevitably question the core of their parents’ authority and its legitimacy. But parents, not the state, have the right to direct their children’s upbringing and education. If a child questions this proposition—the proposition that his or her parents have the “primary role” in directing their upbringing—and the policy is the cause of that questioning—the parent is injured from a legal perspective. And how could a child not question his parents’ authority when the state is telling him that his parents actually have no authority over something as important as his very identity?
This is particularly true when considering that the targets of the policy are children, including those as young as five years old. What inference will children draw when a trusted authority figure tells them that their parents have no right to know about what choices they are making at school—even choices about their name, dress, bathroom use, and identity? Or when a child learns that the “law” doesn’t require the child or the school to tell his parents about his secret life at school, what will he think about his parents then? If parents have no authority even to know that their children are living an entirely different life at school, let alone “direct” or “control” these choices, why should a child believe they ever need to obey their parents in any matter? If parents have no authority over arguably the most consequential choice of a child’s life, why do they have any authority at all? To ask is to answer. And this is where the Article III injury occurs. The policy itself, even without enforcement, directly and concretely injures parents by undermining and altering their right to direct their children’s upbringing.[48]
Consider an analogy from the First Amendment context. When a governmental entity passes a law or regulation that proscribes protected speech, a litigant need not wait until the law is enforced against him to seek relief. Rather, plaintiffs have standing to seek prospective relief through the form of an injunction because “[c]hilled speech is, unquestionably, an injury supporting standing.”[49] Indeed, “abandoning one’s constitutional right of free speech” to avoid likely punishment is a “tangible harm.”[50] Moreover, an injury in fact also occurs when a regulation “reduces the size of a speaker’s audience.”[51] Why is this? Why do citizens have standing to challenge potential First Amendment violations before enforcement? Because the government has claimed authority that it does not have, and by doing so, it directly affects the plaintiff in exercising his constitutional rights. Although the law has not been enforced against him (and may never be), the unconstitutional claim of authority by the government has stopped him from exercising his right to free speech, altered how he speaks, or limited the potential reach of his speech. This gives rise to the claim of “chilled speech” sufficient to constitute an injury in fact—despite the lack of enforcement.
Parents whose children are subject to parental preclusion policies are in the same situation. These policies grant the government authority to interfere in the parent-child relationship of every child in the school. And by claiming that authority, the government interferes and affects that relationship. Even if the policy isn’t “enforced” against a specific child, the parent is still injured because it affects his right to direct the upbringing of his children based on the effects the policy has on the child and how the child views his or her parents. Moreover, and even more egregious than the First Amendment context, parental preclusion policies purport to transfer constitutionally protected authority from the parent to the government. This should give rise to an injury in fact sufficient to satisfy Article III.
In their petition for certiorari in John and Jane Parents 1, the parents made a similar argument, noting that they alleged in the Complaint that the policy is “harming family relations by telling their minor children they have a ‘right’ to withhold information from their parents in all situations relating to transgender relations.”[52] And Judge Niemeyer, in dissent at the Fourth Circuit, likewise noted that the policy itself has “changed on an ongoing basis” “the dynamics and dialogue between parent and child.”[53] The majority, however, ignored these arguments—as did the Supreme Court.
Perhaps this argument was not considered because the parents need to go further in their allegations. Given that the case is at the pleading stage, their current allegations should have been sufficient.[54] But if more is needed, amending the complaint to satisfy this theory of standing shouldn’t be difficult. As long as a child is aware of the policy and has considered its implications, the parents are sufficiently injured to satisfy Article III. The injury is actual and concrete because the parents’ constitutional right to direct their children’s upbringing has been at worst undermined and at least compromised. The injury is also “fairly traceable” to the parental preclusion policy because the policy, although not “enforced” against the parents’ children, is the direct cause of the altered parent-child relationship.
Conclusion
Over twelve million children in the United States currently live under a legal regime where adults with no familial relationship to them can “lawfully” facilitate their social gender transition without parental knowledge or influence, let alone consent and direction. This totalitarian regime must end—and fast. To do that, courts must find that parents have standing to challenge these policies. Analyzing standing from a different angle reveals a truth that the courts have thus far missed—that the policies, by their very existence, injure parents because of the effects they have on children and the parent-child relationship. Once that revelation is realized, parental preclusion policies should be quickly struck down as an unconstitutional infringement on the rights of parents to direct their children’s upbringing and education.
* S. Ernie Walton, Assistant Professor, Regent University School of Law; J.D., Regent University School of Law; B.S., Houghton College. The Author would like to thank Craig Stern for his helpful comments.
[1] 1 William Blackstone, Commentaries *434.
[2] Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
[3] Id. at 233.
[4] See S. Ernie Walton, The Fundamental Right to Homeschool: A Historical Response to Professor Bartholet, 25 Tex. Rev. L. & Pol. 377 (2021).
[5] Blackstone, supra note 1, at *441.
[6] Morrow v. Wood, 35 Wis. 59, 64 (1874).
[7] Blackstone, supra note 1, at *440.
[8] Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”).
[9] Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
[10] Id. at 408.
[11] Id. at 409 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).
[12] John and Jane Parents 1 v. Montgomery Cnty. Bd. of Ed., 78 F.4th 622, 626 (4th Cir. 2023).
[13] Id.; Parents Protecting Our Children, UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024).
[14] John and Jane Parents 1 v. Montgomery Cnty. Bd. of Ed., 78 F.4th 622 (4th Circ. 2023), cert. denied, 144 S. Ct. 2560 (U.S. May 20, 2024) (No. 23-601); Parents Protecting Our Children, UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024), cert. denied, 2024 WL 5036271 (U.S. Dec. 9, 2024) (No. 23-1280).
[15] The doctrine of standing is rooted in Article III, section 2, of the U.S. Constitution, which limits the “judicial Power” to “Cases” and “Controversies.”
[16] Parents Protecting Our Children, UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024), cert. denied, 2024 WL 5036271 (U.S. Dec. 9, 2024) (No. 23-1280) (Alito, J., dissenting from denial of cert.) (“While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their ‘virtually unflagging obligation . . . to exercise the jurisdiction given them.’” (quoting Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976)).
[17] John and Jane Parents 1, 78 F.4th at 626.
[18] Id. at 627; see also S. Ernie Walton, Gender Identity Ideology: The Totalitarian, Unconstitutional Takeover of America’s Public Schools, 34 Regent U. L. Rev. 219 (2022) [hereinafter Gender Identity Ideology].
[19] John and Jane Parents 1, 78 F.4th at 627.
[20] Id.
[21] Id.
[22] Id.
[23] Id. at 626.
[24] See List of School District Transgender–Gender Nonconforming Student Policies, Defending Education https://defendinged.org/investigations/list-of-school-district-transgender-gender-nonconforming-student-policies/, (last updated Mar. 18, 2025) [https://perma.cc/NWF3-KN7C].
[25] Gender Identity Ideology, supra note 18, at *260–62.
[26] Clapper, 568 U.S. 398 at 406, 410–14.
[27] Id. at 401.
[28] Id. at 410. They also alleged that the risk of being surveilled was so “substantial” that they were forced to incur costs to protect the confidentiality of their communications. Id. at 416. The costs, they argued, constituted a present, concrete injury sufficient to satisfy Article III. Id. The Court also rejected this theory because it too rested on speculation. Id. at 415–16.
[29] Id. at 414.
[30] Id. at 410–15.
[31] Id. at 410–11.
[32] 78 F.4th at 630–31.
[33] Id. at 629.
[34] Id.
[35] Id. at 630–31.
[36] Id. at 631.
[37] Parents Protecting Our Children, UA, 95 F.4th at 506.
[38] Id.
[39] Id.; U.S. Const. Art. 3, sec. 2.
[40] John and Jane Parents 1 v. Montgomery Cnty. Bd. of Ed., 78 F.4th 622 (4th Circ. 2023), cert. denied, 144 S. Ct. 2560 (U.S. May 20, 2024) (No. 23-601); Parents Protecting Our Children, UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024), cert. denied, 2024 WL 5036271 (U.S. Dec. 9, 2024) (No. 23-1280).
[41] Parents Protecting Our Children, UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024), cert. denied, 2024 WL 5036271 (U.S. Dec. 9, 2024) (No. 23-1280) (Alito, J., dissenting from denial of cert.).
[42] Id.
[43] Id.
[44] See Gender Identity Ideology, supra note 18, at *225 (discussing how the right of parents to educate their children stands as a bulwark against totalitarian governments).
[45] See supra note 36 and accompanying text (explaining the chain of events that would have to happen to provide an imminent, concrete injury).
[46] Clapper, 568 U.S. at 409.
[47] In addition to the argument discussed below, parental preclusion policies injure parents by claiming authority to withhold information to which they have a right to obtain. Parental preclusion policies deny parents the right to know material information about their children’s general wellbeing, development, and life choices. Without this information, parents cannot direct their children’s upbringing and education in an informed manner. Withholding information that someone has a right to access constitutes a concrete and particularized injury for purposes of Article III. See FEC v. Akins, 524 U.S. 11 (1998) (holding that the “[t]he ‘injury in fact’ that respondents have suffered consists of their inability to obtain information” that a statute required to be made public). This argument was made in both John and Jane Parents 1 and Parents Protecting Our Children and should continue to be made in future cases. Petition for Writ of Certiorari at 22–23, John and Jane Parents 1 v. Montgomery Cnty. Bd. of Ed. (No. 23-601); Petition for Writ of Certiorari at 23–25, Parents Protecting Our Children, UA v. Eau Claire Area Sch. Dist. (No. 23-1280).
[48] TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021) (noting that, for purposes of standing, “[v]arious intangible harms can also be concrete,” including infringement of rights “specified by the Constitution itself”).
[49] Bell v. Keating, 697 F.3d 445, 453 (7th Cir. 2012); see also Benham v. Charlotte, 635 F.3d 129, 135 (4th Cir.2011) (“We have recognized that, to demonstrate injury in fact, it is sufficient to show that one’s First Amendment activities have been chilled.”).
[50] Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.1995).
[51] White Tail Park, Inc. v. Stroube, 413 F.3d 451, 461 (4th Cir. 2005).
[52] John and Jane Parents 1 v. Montgomery Cnty. Bd. of Ed., 78 F.4th 622 (4th Circ. 2024), petition for cert. filed, 2023 WL 8481912, at *8 (Nov. 13, 2023); see also id. at 14–15.
[53] John and Jane Parents 1, 78 F.4th at 641 (Niemeyer, J., dissenting).
[54] Id. at 636 (“The majority reads the Parents’ complaint in this case in an unfairly narrow way and thus denies the Parents the ability to obtain relief.”); id. (“In reaching such a conclusion, the majority totally overlooks material allegations of the complaint about the Parents’ injury, which are sufficient to give the Parents standing.”).