Amicus Curiae Brief — John and Jane Parents 1, et al., Petitioners v. Montgomery County Board of Education, et al.

Supreme Court briefJan 4, 2024

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No. 23-601

In the

Supreme Court of the United States

______________

JOHN AND JANE PARENTS 1; JOHN PARENT 2,

Petitioners,

MONTGOMERY COUNTY BOARD OF EDUCATION, SHEBRA

L. EVAN, BRENDA WOLFF, JUDITH DOCCA, KARLA

SILVESTRE, REBECCA SMONDROWSKI, LYNNE HARRIS,

SCOTT JOFTUS, AND MONIFA B. MCKNIGHT,

individually and in their official capacity as Members of

Montgomery County Board of Education,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

AMICUS BRIEF OF THE AMERICAN CENTER FOR

LAW AND JUSTICE

IN SUPPORT OF PETITIONERS

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

JORDAN A. SEKULOW

COLBY M. MAY

LAURA B. HERNANDEZ

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave. NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................ii

INTEREST OF AMICUS ........................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 4

I. The Fourth Circuit Wrongly Assessed

Petitioners’ Actual Injury by

Minimizing the Rights at Stake ............................ 6

A. Parental Rights Are

Multifaceted and Fundamental ...................... 7

B. Petitioners’ Immediate Harms ....................... 9

II. The Fourth Circuit Wrongly Analyzed

this Court’s Cases Defining Imminent

Injury .................................................................... 13

A. Nature of the Case and Parties

Involved .......................................................... 13

B. Past Wrongs Lower the Bar in

Assessing Imminence of Injury ...................... 15

C. Magnitude of the Threatened Harm.............. 16

III.

The Historical Pedigree of Similar Suits

Establishes Petitioners’ Article III

Standing………………………………………….17

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Baird v. State Bar of Ariz.,

401 U.S. 1 (1971) ................................................... 11

Blum v. Yaretsky,

457 U.S. 991 (1982) ............................................... 15

Carey v. Population Servs. Int’l,

431 U.S. 678 (1977) ................................................. 8

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................. 4-5, 14-15

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974) ................................................. 8

Clements v. Fashing,

457 U.S. 957 (1982) ............................................... 12

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................. 8

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ................................................... 19

Elrod v. Burns,

427 U.S. 347 (1976) ............................................... 11

Garvin Cnty. v. Thompson,

103 P. 578 (Okla. 1909) ......................................... 18

Hardwick v. Bd. of Sch. Trs.,

205 P. 49 (Cal. Ct. App. 1921) ............................... 19

John & Jane Parents 1 v. Montgomery Cnty. Bd. of

Educ.,

78 F.4th 622 (4th Cir. 2023) ...............4-6, 12, 17, 19

Kelley v. Ferguson,

144 N.W. 1039 (Neb. 1914).................................... 18

Laird v. Tatum,

408 U.S. 1 (1972) ............................................. 14-15

Lee v. Weisman,

505 U.S. 577 (1992) ............................................... 19

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ......................................... 13-14

Massachusetts v. EPA,

549 U.S. 497 (2007) ......................................... 16-17

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................. 7

Ne. Fla. Chapter of Associated Gen. Contractors of

Am. V. City of Jacksonville,

508 U.S. 656 (1993) ............................................... 12

O’Shea v. Littleton,

414 U.S. 488 (1974) ............................................... 15

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701 (2007) ................................. 6, 13

Parham v. J.R.,

442 U.S. 584 (1979) ........................................... 9-10

Pennell v. San Jose,

485 U.S. 1 (1988) ............................................. 13-14

Quilloin v. Walcott,

434 U.S. 246 (1978) ................................................. 8

Raines v. Byrd,

521 U.S. 811 (1997) ............................................... 14

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ............................................. 8-9

Skinner v. Oklahoma,

316 U.S. 535 (1942) ............................................. 7-9

Smith v. Org. of Foster Fams. for Equal. & Reform,

431 U.S. 816 (1977) ............................................. 7-8

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ............................................... 15

Sprint Commc’ns. Co., L.P. v. APCC Servs.,

554 U.S. 269 (2008) ............................................... 17

Stanley v. Illinois,

405 U.S. 645 (1972) ................................................. 7

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ..................................... 14, 19

Troxel v. Granville,

530 U.S. 57 (2000) ................................................... 7

Trs. of Sch. v. People,

87 Ill. 303 (1877) .................................................... 18

Turner v. Fouche,

396 U.S. 346 (1970) ............................................... 12

Vollmar v. Stanley,

255 P. 610 (Colo. 1927) .................................... 18-19

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ........................................... 8, 11

Wisconsin v. Yoder,

406 U.S. 205 (1972) ............................................. 7-8

OTHER SOURCES

Eric DeGroff,

Parental Rights and Public School Curricula:

Revisiting Mozert after 20 Years,

38 J.L. & Educ. 83 (2009) .................................... 18

vii

Jill Elaine Hasday,

Parenthood Divided: A Legal History of the

Bifurcated Law of Parental Relations,

90 Geo. L.J. 299 (2002) ......................................... 18

Joseph Goldstein,

Medical Care for the Child at Risk: On State

Supervention of Parental Autonomy,

86 Yale L.J. 645 (1977) ..................................... 9-10

Lisa Littman,

Rapid-onset Gender Dysphoria in Adolescents

and Young Adults: A Study of Parental Reports

(2018), https://rogd.fi/wpcontent/uploads/2021/10/pone.

0214157.s001.pdf. .................................................. 16

Robin Respaut and Chad Terhune,

Reuters, Putting Numbers on the Rise

in Children Seeking Gender Care,

https://www.reuters.com/investigates/specialreport/usa-transyouth-data/, (last visited December

22, 2023). ................................................................ 16

INTEREST OF AMICUS*

Amicus, the American Center for Law and Justice

(ACLJ), is an organization dedicated to the defense of

constitutional liberties secured by law. ACLJ

attorneys have frequently appeared before this Court

as counsel either for a party, e.g., Pleasant Grove City

v. Summum, 555 U.S. 460 (2009), or for amicus, e.g.,

Biden v. Nebraska, 143 S. Ct. 2355 (2023). As an

organization dedicated to protecting the family, the

ACLJ opposes government intrusion in the parentchild relationship absent a showing of parental

unfitness.

SUMMARY OF THE ARGUMENT

This case presents perhaps the most staggering

governmental assault on parental rights in the

nation’s history. The Montgomery County Board of

Education’s Parental Preclusion Policy requires

school employees to hide from parents that their child

identifies as transgender at school if the child

requests it, or the school decides the parents will not

be “supportive” enough of their child’s transition. The

policy applies to all children, regardless of age—even

as young as kindergarteners. Similar policies are

proliferating around the nation and will continue to

inflict untold damage on the parental right to make

decisions for children’s health and wellbeing.

* No counsel for any party in this case authored this brief in whole

or in part. No person or entity aside from Amicus, its members,

or its counsel made a monetary contribution to the preparation

or submission of this brief.

The Fourth Circuit misread this Court’s standing

jurisprudence to give minor children and school

officials veto power over parental rights. First, the

Fourth Circuit failed to recognize the actual harm the

Parental Preclusion Policy inflicts on Petitioners’

parental rights and, for that matter, on other

constitutional protections. Parental rights cases often

implicate other constitutional interests because

parental rights are interconnected with other

fundamental rights, including free speech, free

exercise of religion, and intimate association. The

court’s failure stemmed from its deficient

understanding of the rights at stake.

The Parental Preclusion Policy 1) condones school

employee interference in the parent/child bond; 2)

deceives parents on a critical children’s health issue;

and 3) promotes school-wide adherence to gender

fluidity orthodoxy. When hundreds of children in the

school district are deceiving their parents with the

school’s imprimatur, other children cannot help but

get the message that they can and should lie to

parents who do not agree with school dogma. The

Fourth Circuit’s reasoning that Petitioners will not

suffer injury until their children request school

employee interference in the parent-child relationship

trivializes the right to family integrity and sanctions

immediate interference in the parent/child bond.

The Parental Preclusion Policy also implicates

First Amendment concerns because it conditions the

parental right to make decisions affecting a child’s

health on the parents’ adherence to governmentally

mandated gender-fluidity orthodoxy. Based solely on

the minor child’s current self-perception, potentially

while the child is still in pre-school, school employees

determine whether parents “support” their child’s

transitioning. For the same reason, the Parental

Preclusion

Policy

implicates

equal-protection

interests because it erects a barrier to Petitioners’

exercise of their fundamental right to make decisions

for their children. The Fourth Circuit’s insistence that

this Court’s equal-protection cases have no bearing on

standing misapprehends the Court’s rationale in

those cases.

The Fourth Circuit even more profoundly misread

this Court’s precedents defining imminent injury. The

court held that no imminent harm threatens

Petitioners until their children tell school employees

they identify as transgender and ask the school to

assist them with a “gender support plan” behind their

parents’ backs. In other words, Petitioners’ minor

children enjoy the autonomy to make independent

decisions that nullify the imminence of Petitioners’

future injury. Under the Fourth Circuit’s reasoning,

children can collude with school officials to conceal the

school’s offer of free tattoos during lunch breaks, and

the Parents have no recourse until after the child

receives the tattoo—if and when the Parents happen

to discover it.

This Court’s cases establish that the standard for

imminent harm is lowest where, as here, separationof-powers concerns are de minimis. Because 1)

Petitioners’ have brought claims against local school

officials for violation of personal fundamental rights;

2) the school district is currently deceiving hundreds

of parents; and 3) the magnitude of threatened injury

Petitioners may suffer is severe, Petitioners’ have

shown a threat of imminent harm. Even were that not

so, however, Petitioners’ Article III standing is

beyond cavil because their claims share a historical

pedigree with parental rights claims brought for the

past century and a half.

This Court’s review of this unprecedented assault

on the fundamental rights of parents is imperative.

ARGUMENT

Even though the School District has colluded with

hundreds of minor students to conceal from their

parents that they are pursuing gender transitioning,

the Fourth Circuit held that Petitioners lacked

standing because they suffered no actual harm, and

their future injury was not imminent. John & Jane

Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th

622, 631 (4th Cir. 2023). The court’s foundational (but

unarticulated) premise was that children enjoy the

autonomy

deemed

“independent

decisionmakers,” who can impact the imminence of

their parents’ injury. According to the court,

Petitioners’ injury is not imminent until their minor

children decide they “identify as transgender or

gender nonconforming,” and “want to approach the

school about a gender support plan.” See id. at 630-31

(citing Clapper v. Amnesty Int’l USA, 568 U.S. 398

(2013)).

The Fourth Circuit’s reliance on Clapper is badly

misplaced. Clapper, a national security case, held that

plaintiffs’ injury was not imminent because it was

contingent on a variety of potential actions by at least

two federal government entities. As “independent

decision-makers,” the government entities may never

take the actions necessary to cause Plaintiffs injury.

Clapper, 568 U.S. at 413-14. Clapper has no bearing

here for the obvious reason that minor children cannot

be “independent decision-makers” from their parents.

Following the Fourth Circuit’s reasoning to its logical

end, school districts can secretly offer minor students

a variety of enticements, such as marijuana, or live

sex-ed demonstrations. Having no knowledge of these

offerings, parents are without recourse until their

child happens to mention his participation.

The Fourth Circuit grievously misread this Court’s

standing jurisprudence. There is no one-size-fits-all

test, and context matters in determining whether

plaintiffs have suffered imminent injury. Where, as

here, separation of powers concerns are de minimis (if

not non-existent), imminent injury exists when 1) the

challenged government action has violated plaintiffs’

personal constitutional rights; 2) the defendant has

committed past wrongs against hundreds of similarly

situated individuals; and 3) the magnitude of

threatened injury is severe. This should have been an

easy case because Petitioners’ claims satisfy not just

one, but all three factors. Instead, the Fourth Circuit

exalted gender fluidity orthodoxy over the

fundamental right to parent minor children.

Review is warranted not only to reverse the lower

court’s “abdication of judicial duty with respect to a

very important constitutional issue,” Parents 1, 78

F.4th at 637 (Niemeyer, J., dissenting), but also to

reverse the Fourth Circuit’s profoundly misguided

standing analysis which cuts the legs out from under

the nation’s oldest fundamental right.

I. The Fourth Circuit Wrongly Assessed

Petitioners’ Actual Injury by Minimizing

the Rights at Stake.

The Fourth Circuit’s failure to recognize

Petitioners’ actual injury and the imminence of their

future injury derives from a deficient understanding

of the rights at issue. That deficit also explains the

court’s erroneous conclusion that the standard for

establishing imminent injury is more rigorous in this

case than in Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701 (2007) because that case

presented an Equal Protection Clause claim. See

Parents 1, 78 F.4th at 633-34.

There is no hierarchy of constitutional rights for

purposes of Article III standing. Even assuming Equal

Protection Clause rights enjoy preferred status, the

Parental Preclusion Policy runs afoul of equalprotection principles because it erects a barrier to

Petitioners’ ability to make decisions about their

children’s health. Under Parents Involved and this

Court’s other equal-protection cases, that barrier

qualifies as actual injury.

Equally important, the constitutional protection

for family integrity and parental authority over the

health care decisions of minor children necessarily

forecloses the notion that Petitioners’ injuries are

speculative because their minor children have the

autonomy to act as “independent decision-makers.”

The very idea eviscerates parental rights while

creating out of whole cloth an autonomy right for

minor children—including the right to collude with

governmental officials to deceive their parents.

A. Parental Rights Are Multifaceted

and Fundamental

Parental rights have a pedigree unmatched in

constitutional law. As one of the only preconstitutional rights recognized by this Court under

the Due Process Clause of the Fourteenth

Amendment, parental rights are among the most

sacred liberties our nation cherishes. See, e.g., Troxel

v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion)

(fundamental rights of parents to direct their

children’s upbringing are “perhaps the oldest of the

fundamental liberty interests recognized by this

Court.”); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972)

(“The history and culture of Western civilization

reflect a strong tradition of parental concern for the

nurture and upbringing of their children. This

primary role of the parents in the upbringing of their

children is now established beyond debate as an

enduring American tradition.”); Stanley v. Illinois.,

405 U.S. 645, 651 (1972) (“The Court has frequently

emphasized the importance of the family. The rights

to conceive and to raise one’s children have been

deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390,

399 (1923), ‘basic civil rights of man,’ Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942); Smith v. Org. of

Foster Fams. for Equal. & Reform, 431 U.S. 816, 845

(1977) (stating that “the liberty interest in family

privacy has its source . . . in intrinsic human rights, as

they have been understood in ‘this Nation’s history

and tradition’”).

What is more, parental rights and the corollary

right, family integrity, are safeguarded by other

constitutional provisions, such as the First

Amendment Religion, Free Speech, and Right of

Association Clauses, and the Equal Protection Clause.

See, e.g., Yoder, 406 U.S. at 219 (“enforcement of the

State’s requirement of compulsory formal education

after the eighth grade would gravely endanger if not

destroy the free exercise of respondents’ religious

beliefs.”); Edwards v. Aguillard, 482 U.S. 578, 584

(1987) (Although “[f]amilies entrust public schools

with the education of their children,” they “condition

their trust on the understanding that the classroom

will not purposely be used to advance religious [or

ideological] views that may conflict with the private

beliefs of the student and his or her family.”); W. Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 642

(1943) (upholding parents’ right to opt Jehovah’s

Witness schoolchildren out of saying the Pledge of

Allegiance, because “[f]ree public education . . . will

not be partisan or enemy of any class, creed, party, or

faction”); Roberts v. United States Jaycees, 468 U.S.

609, 618-20 (1984) (citing this Court’s family integrity

cases 1 ) (The right of intimate association affords

“certain kinds of highly personal relationships a

substantial measure of sanctuary from unjustified

interference by the State.”); Skinner, 316 U.S. at 541

Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Smith v. Org. of

Foster Fams., 431 U.S. 816, 844 (1977); Carey v. Population

Servs. Int’l, 431 U.S. 678, 684-86 (1977); Cleveland Bd. of Educ.

v. LaFleur, 414 U.S. 632, 639-40 (1974).

(Equal Protection Clause protects the “basic civil

right[]” of family integrity).

As is true in many parental rights cases, this case

implicates both immediate and future harm to

fundamental constitutional rights. If allowed to stand,

the decision below threatens constitutional rights

beyond those asserted in this case.

B. Petitioners’ Immediate Harms

The Parental Preclusion Policy causes multiple,

immediate harms to Petitioners’ parental rights and

the right to family integrity: 1) school employees

asserting preeminent authority over minor children;

2) colluding to deceive the child’s parents; and 3)

endorsement of gender fluidity orthodoxy. The

Parental Preclusion Policy unjustifiably interferes

with the parent/child bond and violates the right to

intimate association and family integrity. Roberts,

468 U.S. at 618-20. The right to parental control over

a child’s medical treatment encompasses parental

decisions that are “not agreeable to a child,” Parham

v. J.R., 442 U.S. 584, 603 (1979)—which certainly

includes those related to gender dysphoria.

[T]he right of parents to raise their children

as they think best, free of coercive

intervention, comports as well with each

child’s biological and psychological need for

unthreatened and unbroken continuity of care

by his parents. No other animal is for so long

a time after birth in so helpless a state that

its survival depends upon continuous nurture

by an adult. Although breaking or weakening

the ties to the responsible and responsive

adults may have different consequences for

children of different ages, there is little doubt

that such breaches in the familial bond will be

detrimental to a child’s well-being.

Joseph Goldstein, Medical Care for the Child at Risk:

On State Supervention of Parental Autonomy, 86 Yale

L.J. 645, 649 (1977) (emphasis added).

Whether the child invites or consents to such

parental intrusion is irrelevant. Parham, 442 U.S. at

604 (“Neither state officials nor federal courts are

equipped to review such parental decisions,” even if

the child “balk[s]” or “complain[s]” about them). The

Fourth Circuit’s facile reasoning that Petitioners have

not suffered injury until their children request school

employee interference in the parent-child relationship

trivializes the right to family integrity and sanctions

an immediate breach in the familial bond. The injury

has already occurred and is not dependent on the

minor child’s alliance with school officials.

If minor children can act as independent decisionmakers, schools could, for example, surreptitiously

provide free tattoos to minor children or replace study

halls with seminars teaching that violence against

Israel is warranted. Under the Fourth Circuit’s

reasoning, parents would have no right to sue to keep

their children from either event unless the child

makes the “independent decision” to get a tattoo or

attend the seminars and discloses that decision to his

parents. Worse, the Parental Preclusion Policy

authorizes school officials to conspire with students to

keep their parents from finding out about this gross

intrusion on the parent/child relationship, making it

impossible to avoid permanent harm in advance.

As in Barnette, the Free Speech Clause may also

afford protection to parental rights.2 The Free Speech

Clause forbids the government from “inquir[ing] about

a man’s views or associations solely for the purpose of

withholding a right or benefit because of what he

believes.” See Baird v. State Bar of Ariz., 401 U.S. 1, 7

(1971). The Parental Preclusion Policy requires school

officials to ask gender dysphoric children about their

parents’ “support” for gender transitioning solely for

the purpose of deciding whether to keep parents from

exercising their right to be involved in important life

decisions for their minor children. The Parental

Preclusion Policy constitutes a transparent attempt to

coerce ideological orthodoxy. See Barnette, 319 U.S. at

642 (“[N]o official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion or force citizens to confess by

word or act their faith therein.”); cf. Elrod v. Burns,

427 U.S. 347, 351, 373 (1976) (holding that plaintiffs

“unquestionably” suffered irreparable injury where

government officials threatened to punish plaintiffs

for their political views).

In a similar vein, policies like the Parental

Preclusion Policy implicate equal protection concerns

2 Although the parents in Barnette did not bring parental rights

claims, the Court’s decision may accurately be characterized as

holding that the Jehovah’s Witnesses parents’ rights to direct the

upbringing of their children trumped the school board’s

requirement that all students must salute the flag. See 319 U.S.

at 637.

by giving preferential treatment to parents who

support gender fluidity dogma and penalizing those

who do not.

When the government erects a barrier that

makes it more difficult for members of one

group to obtain a benefit than it is for

members of another group, a member of the

former group seeking to challenge the barrier

need not allege that he would have obtained

the benefit but for the barrier in order to

establish standing. The “injury in fact” in an

equal protection case of this variety is the

denial of equal treatment resulting from the

imposition of the barrier, not the ultimate

inability to obtain the benefit.

Ne. Fla. Chapter of Associated Gen. Contractors of Am.

v. City of Jacksonville, 508 U.S. 656, 666 (1993); see

also Turner v. Fouche, 396 U.S. 346, 361 n.23 (1970)

(holding plaintiffs had standing to challenge a Georgia

law limiting school board membership to property

owners even though plaintiffs could not show that

they would otherwise be elected); Clements v. Fashing,

457 U.S. 957, 960, 962 (1982) (holding that plaintiffs

suffered injury from the “obstacle” the “automatic

resignation” provision of the Texas Constitution,

imposed on some, but not all, state officeholders upon

their announcement of a candidacy for another office).

The Parental Preclusion Policy erects an obstacle

to parental involvement in a significant child

development issue. Contrary to the Fourth Circuit’s

reasoning, Parents I, 78 F.4th at 633-34, Petitioners’

injury here is, if anything, much worse than the injury

suffered by the parents in Parents Involved, which

resulted from a barrier to a government benefit. 551

U.S. at 718-19 (denial of equal access to competition

for places at public high schools). This case involves a

barrier to the exercise of a constitutional right.

Petitioners have suffered actual harm, but even

were that not so, their future harm is sufficiently

imminent to confer standing. The Fourth Circuit’s

contrary conclusion derives from a distorted view of

this Court’s cases addressing imminent injury.

II. The Fourth Circuit Wrongly Analyzed this

Court’s Cases Defining Imminent Injury.

Imminence is an “elastic concept.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 565 n.2 (1992).

This Court’s standing jurisprudence requires a

nuanced approach that considers several factors,

including: the nature of the case and the parties

involved; whether others similarly situated have

already suffered the specific injury alleged; and the

magnitude of the injury. When those factors are

properly considered, Petitioners’ future injuries are

sufficiently imminent to confer standing.

A. Nature of the Case and Parties

Involved

Because this case involves the violation of private

constitutional rights by municipal officials, a relaxed

formulation of the “substantial risk” test is the proper

standard. See, e.g., Pennell v. San Jose, 485 U.S. 1, 8

(1988) (“realistic danger” qualifies as imminent injury

in suit against municipality for violation of various

federal constitutional provisions). This case has none

of the hallmarks which trigger the most rigorous test

for imminent injury. The bar for Article III standing

is highest when the case poses the greatest risk to the

separation of powers. Clapper, 568 U.S. at 408 (“[O]ur

standing inquiry has been especially rigorous when

reaching the merits of the dispute would force us to

decide whether an action taken by one of the other two

branches of the Federal Government was

unconstitutional.” (quoting Raines v. Byrd, 521 U.S.

811, 819-20 (1997))). For example, congressionally

authorized citizen suits run the risk of enabling the

judiciary “to assume a position of authority over the

governmental acts of another and co-equal

department.’” Lujan, 504 U.S. at 577; see also

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207

(2021) (“A regime where Congress could freely

authorize unharmed plaintiffs to sue defendants who

violate federal law not only would violate Article III

but also would infringe on the Executive Branch’s

Article II authority.”).

Similarly, the presence of national security

interests justifies heightened vigilance for separation

of powers. See, e.g., Clapper, 568 U.S. at 409 (“We have

often found a lack of standing in cases in which the

Judiciary has been requested to review actions of the

political branches in the fields of intelligence

gathering and foreign affairs”); Laird v. Tatum, 408

U.S. 1, 11-16 (1972) (plaintiffs lacked standing to

challenge an Army intelligence-gathering program).

By contrast, Petitioners’ claims present “no

danger” that their “suit is an impermissible attempt

to police the activity of the political branches.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 347 (2016) (Thomas, J.,

concurring) (noting for purposes of standing inquiry

the critical distinction between public-rights cases

and cases where “private individuals sue to redress

violations of their own private rights”). The Fourth

Circuit’s primary reliance on Clapper was therefore

misplaced.

Other factors weigh in favor of finding imminent

injury here, including that the Parental Preclusion

Policy is currently being applied to hundreds of other

unknowing parents in the school district. Pet. Cert. at

17, 33-34.

B. Past Wrongs Lower the Bar in

Assessing Imminence of Injury

Past wrongs against similarly situated individuals

can impact whether there is a realistic threat of

injury. Blum v. Yaretsky, 457 U.S. 991, 1001 (1982)

(holding that because defendants subjected others

similarly situated to the same wrongs that plaintiffs

feared, the threat of injury was sufficiently “realistic”

to confer standing); O’Shea v. Littleton, 414 U.S. 488,

496 (1974). The Parental Preclusion Policy is

currently being applied to hundreds of other students

and their parents, Pet. Cert. at 17, 33-34, at a time

when there is an exponential increase in American

children identifying as transgender.

Between 2017 and 2021, the number of children

who were diagnosed with gender dysphoria in the U.S.

nearly tripled. 3 Social contagion is undoubtedly a

significant contributor. Former Brown University

professor Lisa Littman documented the increase in

the “rapid onset of gender dysphoria” and concluded

that social contagion plays a significant role. 4 Dr.

Littman surveyed parents of children who identified

as transgender and found that 69% of the children

were part of a friend group where at least one friend

came out as trans around the same time.5 Comparing

modern and historic trends in gender dysphoria, Dr.

Littman concluded that peer-influence could have an

outsized influence on the increase in gender

dysphoria.6

In combination, the dramatic rise in transgender

children and the number of parents currently being

kept in the dark about their child more than suffice to

establish a realistic threat of future injury.

C. Magnitude of the Threatened Harm

Another factor in determining the imminence of

injury is the severity of the harm. “The more drastic

the injury that government action makes more likely,

the lesser the increment in probability to establish

3 See Robin Respaut and Chad Terhune, Putting Numbers on the

Rise in Children Seeking Gender Care, Reuters (Oct. 6, 2022,

11:00

AM),

https://www.reuters.com/investigates/specialreport/usa-transyouth-data/.

4 Lisa Littman, Rapid-Onset Gender Dysphoria in Adolescents

and Young Adults: A Study of Parental Reports 2-3 (2018),

https://rogd.fi/wpcontent/uploads/2021/10/pone.0214157.s001.pdf.

5 Id. at 16.

6 Id. at 37.

standing.” Massachusetts v. EPA, 549 U.S. 497, 525

n.23 (2007) (citation omitted) (holding that “[t]he risk

of catastrophic harm” to Massachusetts’ coastline

from climate change satisfied the imminent injury

requirement).

Although

the

Fourth

Circuit

acknowledged that the Parental Preclusion Policy is

“staggering,” Parents I, 78 F.4th at 631, it failed to

recognize the magnitude of imminent harm that

threatens Petitioners as their children are

inescapably exposed at school to the social contagion

associated with gender fluidity orthodoxy. The Fourth

Circuit was apparently untroubled by the prospect

that an elementary school-age child could conspire

with school officials to deceive her parents about her

gender identity throughout the remainder of her

public-school education. If that is not drastic

imminent harm to parental rights, the right is

meaningless.

III. The Historical Pedigree of Similar Suits

Establishes Petitioners’ Article III Standing.

Apart from the severe imminent injury threatened,

Petitioners have standing because their claims share

commonality with parental rights suits brought for

the last century and a half. “History and tradition

offer a meaningful guide to the types of cases that

Article III empowers federal courts to consider” and

where parties have “long been permitted to bring” the

type of suit at issue, it is “well nigh conclusive” that

Article III standing exists. Sprint Commc’ns. Co., L.P.

v. APCC Servs., 554 U.S. 269, 274-75, 285 (2008)

(emphasis added).

Parental rights suits date back to the nineteenth

century and common law courts were “highly

respectful of the control that parents, particularly

fathers, exercised over their households and children

. . . .”). Jill Elaine Hasday, Parenthood Divided: A

Legal History of the Bifurcated Law of Parental

Relations, 90 Geo. L.J. 299, 311 (2002). Even after

compulsory public education laws were the norm,

parents were permitted to bring suits requesting

exemption for their children from courses even though

some of the courses were mandated by state

legislatures or local school districts. See Eric DeGroff,

Parental Rights and Public School Curricula:

Revisiting Mozert after 20 Years, 38 J.L. & Educ. 83

(2009). Professor DeGroff compiled cases from across

the country upholding parental rights in clashes with

public schools. Id. at 113-16.

In the typical case, the student was barred from

attending the school if he did not attend a class due to

his parents’ objections to the class. Parents then

brought a writ of mandamus action to compel the

school to readmit the student. In virtually every case,

the court ruled for the parents on parental rights

grounds. See, e.g., Trs. of Sch. v. People, 87 Ill. 303,

308 (1877) (exemption from the study of grammar);

Kelley v. Ferguson, 144 N.W. 1039, 1040 (Neb. 1914)

(exemption from required cooking class); Garvin Cnty.

v. Thompson, 103 P. 578 (Okla. 1909) (exemption from

music course); Vollmar v. Stanley, 255 P. 610, 613-15

(Colo. 1927) (exemption from reading King James

version of the Bible; court held that “the right of

parents to select, within limits, what their children

shall learn, is one of the liberties guaranteed by the

Fourteenth

Amendment

the

national

Constitution.”); but see Hardwick v. Bd. of Sch. Trs.,

205 P. 49 (Cal. Ct. App. 1921) (granting student

exemption from dance classes on free exercise clause

grounds).

That these cases involved mandamus actions is

immaterial. To determine whether Petitioners “have

identified a close historical or common-law analogue

for their asserted injury[,] . . . an exact duplicate in

American history and tradition” is not necessary.

TransUnion, 141 S. Ct. at 2204.

Moreover, as Petitioners pointed out, Pet. Cert. at

12-13, more recent cases join these historical

examples to establish Petitioners’ standing to

challenge the Parental Preclusion Policy. See, e.g., Lee

v. Weisman, 505 U.S. 577, 584 (1992) (challenging

graduation ceremony prayer that student was not

compelled to pray herself); Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 19 (2004) (Rehnquist,

C.J., O’Connor, J., Thomas, J., concurring) (noting

majority opinion’s holding that divorced parent

“satisfies the requisites of Article III standing” but

criticizing majority’s “novel” principle that parent

lacks “prudential standing” because of California

domestic relations law).

Contrary to the Fourth Circuit’s view, this case

does not present a problem for the ballot box. Parents

I, 78 F.4th at 636. Petitioners have Article III

standing. Any other conclusion will give school

districts carte blanche to shred constitutional rights

by deceiving parents who refuse to support gender

fluidity orthodoxy.

CONCLUSION

Amicus respectfully requests this Court to grant

review and reverse the Fourth Circuit.

Respectfully submitted,