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

No. 23-601

In the Supreme Court of the United States

JOHN AND JANE PARENTS 1, ET AL.,

Petitioners,

V.

MONTGOMERY COUNTY BOARD OF EDUCATION, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 16 OTHER STATES

IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Principal Deputy Solicitor

General

Counsel of Record

FRANKIE A. DAME

SPENCER J. DAVENPORT

Assistant Solicitors

General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTIONS PRESENTED

1. When a public school, by policy, expressly targets

parents to deceive them about how the school will treat

their minor children, do parents have standing to seek

injunctive and declaratory relief in anticipation of the

school applying its policy against them?

2. Assuming the parents have standing, does the

Parental Preclusion Policy violate their fundamental

parental rights?

II

TABLE OF CONTENTS

Questions Presented ............................................................ I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 4

I.

The Court should grant the Petition to

clarify that parents have standing to bring

cases in this confused area of the law ......................... 4

II. The Court should also grant the Petition

to protect crucial parental rights............................... 16

Conclusion ........................................................................... 22

III

TABLE OF AUTHORITIES

Page(s)

Cases

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) ....................................................... 21

Bay Cnty. Democratic Party v. Land,

347 F. Supp. 2d 404 (E.D. Mich. 2004) ....................... 12

Brandt by and through Brandt v.

Rutledge,

47 F.4th 661 (8th Cir. 2022) ........................................... 8

Brown v. Bd. of Educ. of Topeka,

347 U.S. 483 (1954) ......................................................... 1

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ........................................... 10, 14, 15

Draper v. Healey,

827 F.3d 1 (1st Cir. 2016) ............................................. 10

Fla. State Conf. of NAACP v. Browning,

522 F.3d 1153 (11th Cir. 2008) ..................................... 15

Franciscan All., Inc. v. Becerra,

47 F.4th 368 (5th Cir. 2022) ......................................... 14

Hassan v. City of N.Y.,

804 F.3d 277 (3d Cir. 2016) .......................................... 15

Helling v. McKinney,

509 U.S. 25 (1993) ......................................................... 11

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Hoptowit v. Spellman,

753 F.2d 779 (9th Cir. 1985) ......................................... 11

Johnson’s Prof’l Nursing Home v.

Weinberger,

490 F.2d 841 (5th Cir. 1974) ......................................... 21

Jones v. Coleman,

848 F.3d 744 (6th Cir. 2017) ......................................... 10

In re K.H.,

773 S.E.2d 20 (W. Va. 2015) ......................................... 11

L. W. by & through Williams v. Skrmetti,

83 F.4th 460 (6th Cir. 2023) ....................................... 1, 8

Laird v. Tatum,

408 U.S. 1 (1972) ........................................................... 10

Lambert v. Wicklund,

520 U.S. 292 (1997) ....................................................... 15

Liddell v. Special Admin. Bd. of the

Transitional Sch. Dist. of the City of St.

Louis,

894 F.3d 959 (8th Cir. 2018) ......................................... 14

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................................. 10, 16

Martinez v. Malloy,

350 F. Supp. 3d 74 (D. Conn. 2018) ............................. 14

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Massachusetts v. U.S. Dep’t of Health &

Hum. Servs.,

923 F.3d 209 (1st Cir. 2019) ......................................... 11

May v. Anderson,

345 U.S. 528 (1953) ....................................................... 17

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ....................................................... 11

Meyer v. Nebraska,

262 U.S. 390 (1923) ........................................... 17, 18, 19

Michael H. v. Gerald D.,

491 U.S. 110 (1989) ......................................................... 2

NAACP v. Alabama,

357 U.S. 449 (1958) ................................................. 12, 13

Ollier v. Sweetwater Union High Sch.

Dist.,

768 F.3d 843 (9th Cir. 2014) ......................................... 14

Parents Defending Educ. v. Linn Mar

Cmty. Sch. Dist.,

83 F.4th 658 (8th Cir. 2023) ......................................... 14

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) ....................................................... 13

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Parham v. J.R.,

442 U.S. 584 (1979) ............................................. 4, 17, 18

Pierce v. Soc’y of the Sisters of the Holy

Names of Jesus and Mary,

268 U.S. 510 (1925) ....................................................... 18

Planned Parenthood of Greater Wash. &

N. Idaho v. DHHS,

946 F.3d 1100 (9th Cir. 2020) ....................................... 14

Posey v. S.F. Unified Sch. Dist.,

No. 23-cv-2626, 2023 WL 8420895 (N.D.

Cal. Dec. 4, 2023) .......................................................... 10

Prince v. Massachusetts,

321 U.S. 158 (1944) ............................................... 1, 2, 18

Regino v. Staley,

No. 22:3-cv-32, 2023 WL 4464845

(E.D. Cal. July 11, 2023) ................................................ 8

Ricard v. USD 475 Geary Cnty., KS Sch.

Bd.,

No. 5:22-cv-4015, 2022 WL 1471372

(D. Kan. May 9, 2022) ..................................................... 8

Sandusky Cnty. Democratic Party v.

Blackwell,

387 F.3d 565 (6th Cir. 2004) ......................................... 12

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Santosky v. Kramer,

455 U.S. 745 (1982) ....................................................... 16

Schuchardt v. President of the U.S.,

839 F.3d 336 (3d Cir. 2016) .......................................... 15

Sciolino v. City of Newport News,

480 F.3d 642 (4th Cir. 2007) ......................................... 11

Seegars v. Gonzales,

396 F.3d 1248 (D.C. Cir. 2005) .................................... 10

Skinner v. Oklahoma,

316 U.S. 535 (1942) ....................................................... 17

Smith v. Org. of Foster Families for Equal.

& Reform,

431 U.S. 816 (1977) ....................................................... 17

Stark v. Wickard,

321 U.S. 288 (1944) ....................................................... 15

Tatel v. Mt. Lebanon Sch. Dist.,

No. 22-cv-837, 2023 WL 3740822

(W.D. Pa. May 31, 2023)................................................. 8

Thole v. U.S. Bank N.A.,

140 S. Ct. 1615 (2020) ..................................................... 9

Thompson v. Oklahoma,

487 U.S. 815 (1988) ....................................................... 17

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Troxel v. Granville,

530 U.S. 57 (2000) ....................................................... 2, 4

Tuan Anh Nguyen v. INS,

533 U.S. 53 (2001) ........................................................... 2

In re U.S. Off. of Pers. Mgmt. Data Sec.

Breach Litig.,

928 F.3d 42 (D.C. Cir. 2019) ........................................ 10

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) ....................................................... 16

Vega v. Semple,

963 F.3d 259 (2d Cir. 2020) .......................................... 11

Vill. of Elk Grove Vill. v. Evans,

997 F.2d 328 (7th Cir. 1993) ......................................... 11

In re Visitation of L.M.,

859 S.E.2d 271 (W. Va. 2021) ....................................... 19

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................................... 14

Willey v. Sweetwater Cnty. Sch. Dist. No. 1

Bd. of Trustees,

No. 23-cv-69, 2023 WL 4297186

(D. Wyo. June 30, 2023) ................................................. 8

Wisconsin v. Yoder,

406 U.S. 205 (1972) ..................................... 17, 18, 19, 20

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Wynn v. Carey,

582 F.2d 1375 (7th Cir. 1978) ................................... 2, 20

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ....................................................... 19

Statutes

ARK. CODE § 6-41-901 ........................................................ 19

FLA. STAT. § 1006.28 .......................................................... 19

GA. CODE § 20-2-786 ........................................................... 19

MISS. CODE § 37-173-3 ....................................................... 19

UTAH CODE § 53F-4-302 .................................................... 19

W. VA. CODE § 18-5-27 ....................................................... 19

Other Authorities

1 William Blackstone,

Commentaries on the Laws of England

(1753) .............................................................................. 16

Azeen Ghorayshi,

Report Reveals Sharp Rise in

Transgender Young People in the U.S.,

N.Y. TIMES (June 10, 2022) ........................................... 4

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Bryan Lammon,

Rules, Standards, and

Experimentation in Appellate

Jurisdiction,

74 OHIO ST. L.J. 423 (2013) .......................................... 21

Desirée LeClercq,

The Disparate Treatment of Rights in

U.S. Trade,

90 FORDHAM L. REV. 1 (2021) ....................................... 8

Drew Fabricius,

Competing for the Starting Line: How

Ombuds Programs Can Help

Transgender Student-Athletes

Participate Under Various State

Policies,

2023 J. DISP. RESOL. 85 (2023) ...................................... 7

Elizabeth R. Kirk,

Parental Rights: In Search of

Coherence,

27 TEX. REV. L. & POL. 729 (2023) ............................ 7, 8

Erin Cranor, Out in Public:

Legal and Policy Benefits of Open,

Cooperative K-12 Transgender Policy

Development,

2019 B.Y.U. EDUC. & L.J. 191 (2019) .......................... 7

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

Gerard E. Lynch,

Sentencing: Learning from, and

Worrying About, the States,

105 COLUM. L. REV. 933 (2005) ................................... 21

GLSEN,

MODEL LOCAL EDUCATION AGENCY

POLICY ON TRANSGENDER AND

NONBINARY STUDENTS (2020) ...................................... 5

Grace Iarocci & Emily Gardiner,

Social Competence During Adolescence

Across Cultures, in INTERNATIONAL

ENCYCLOPEDIA OF THE SOCIAL &

BEHAVIORAL SCIENCES 216

(2015 2d ed.) .................................................................. 20

HILARY CASS,

INDEPENDENT REVIEW OF GENDER

IDENTITY SERVICES FOR CHILDREN AND

YOUNG PEOPLE: INTERIM REPORT,

CASS REV. (2022) ............................................................ 5

James S. Morandini et al.,

Is Social Gender Transition Associated

with Mental Health Status in Children

and Adolescents with Gender

Dysphoria?,

52 ARCHIVES OF SEXUAL BEHAVIOR

1045 (2023) ....................................................................... 5

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

JODY L. HERMAN ET AL.,

AGE OF INDIVIDUALS WHO IDENTIFY AS

TRANSGENDER IN THE UNITED STATES,

WILLIAMS INST. (2017) .................................................. 4

JODY L. HERMAN ET AL.,

HOW MANY ADULTS AND YOUTH

IDENTIFY AS TRANSGENDER IN THE

UNITED STATES,

WILLIAMS INST. (2022)................................................... 4

John Locke,

Second Treatise of Government (1690) ...................... 17

Katie Baker,

When Students Change Gender

Identity, and Parents Don’t Know,

N.Y. TIMES (Jan. 23, 2023) ........................................ 6, 8

Leor Sapir,

The ‘T’ Piggybacking on the ‘LGB,’

CITY JOURNAL (Sept. 27, 2022) ..................................... 5

List of School District Transgender –

Gender Nonconforming Student

Policies, PARENTS DEFENDING EDUC.

(last updated Jan. 3, 2023) ............................................. 6

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Maggie Paino & Suzanne Eckes,

Do Parents Have A Fundamental

Right to Know About Their Child’s

Gender Identity in School?,

405 EDUC. L. REP. 17 (2022) .......................................... 7

Mai Stafford et al.,

Parent-child relationships and

offspring’s positive mental wellbeing

from adolescence to early older age,

11 J. POSITIVE PSYCH. 326 (2015) ............................... 20

Melissa Moschella,

Natural Law, Parental Rights, and the

Defense of “Liberal” Limits on

Government: An Analysis of the

Mortara Case and Its Contemporary

Parallels,

98 NOTRE DAME L. REV. 1559 (2023) ........................... 6

Michael Coenen & Seth Davis,

Percolation’s Value,

73 STAN. L. REV. 363 (2021)......................................... 21

Michael Torres,

Whether You Like It Or Not,

CITY JOURNAL (July 18, 2023) ................................... 5, 7

Nat Stern,

Separation of Powers, Executive

Authority, and Suspension of Disbelief,

54 HOUS. L. REV. 125 (2016) ........................................ 11

XIV

TABLE OF AUTHORITIES

(continued)

Page(s)

Priscilla DeGregory & Katherine Donlevy,

NJ school districts temporarily blocked

from enforcing requirement to notify

parents if child changes gender

identity,

N.Y. POST (Aug. 18, 2023, 9:36 p.m.) ............................. 7

Rachel N. Morrison,

Gender Identity Policy Under the

Biden Administration,

23 FEDERALIST SOC’Y REV. 85 (2022) .......................... 9

Robin Kundis Craig,

Administrative Law in the Roberts

Court: The First Four Years,

62 ADMIN. L. REV. 69 (2010) ........................................ 13

Ronna Greff Schneider,

School Matters,

92 U. CIN. L. REV. 1 (2023) ............................................ 9

Ryan Bangert,

Parental Rights in the Age of Gender

Ideology,

27 TEX. REV. L. & POL. 715 (2023) .......................... 8, 17

XV

TABLE OF AUTHORITIES

(continued)

Page(s)

Stephen McLoughlin,

Toxic Privacy: How the Right to

Privacy Within the Transgender

Student Parental Notification Debate

Threatens the Safety of Students and

Compromises the Rights of Parents,

15 DREXEL L. REV. 327 (2023). ..................................... 6

Susanne Alm et al.,

Poor Family Relationships in

Adolescence and the Risk of Premature

Death: Findings from the Stockholm

Birth Cohort Study,

16 INT’L J. OF ENV’T RSCH. AND PUB.

HEALTH, no. 10, 2019.............................................. 20, 21

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

When parents send their kids to school, they expect

educators to tell them about important things that might

come up. Parents need to know what’s happening in their

children’s lives to raise them and care for them well. After

all, while schools play a crucial role in educating children

and preparing them to perform “our most basic public

responsibilities,” Brown v. Bd. of Educ. of Topeka, 347

U.S. 483, 493 (1954), “the custody, care and nurture of the

child reside first in the parents,” Prince v. Massachusetts,

321 U.S. 158, 166 (1944).

For the most part, schools have respected the

relationship between parents and children. From medical

issues to disciplinary matters to bullying to grades, and

everything between, schools relay key information to

parents that may affect how they raise their young ones.

Schools usually recognize that the big decisions still lie

with the child’s parents.

The Montgomery County Board of Education is

different. The Board’s “Guidelines for Student Gender

Identity” includes a Parental Preclusion Policy that in

turn tells schools to develop a “gender-support plan”

without involving the parents. Worse still, schools

affirmatively withhold information about a student’s

gender-support plan from the student’s parents. Children

can go by a different name, use a different restroom, and

identify as a different gender at school—all without their

parents knowing. So the Policy boxes parents out from an

issue with “medical, social, and policy” implications. L. W.

Under Supreme Court Rule 37.2, amici timely notified counsel of

record of their intent to file this brief.

*

2

by & through Williams v. Skrmetti, 83 F.4th 460, 491 (6th

Cir. 2023) (Sutton, J.). It prevents parents from fulfilling

their parental role.

Montgomery County’s policy disrupts “perhaps the

oldest of the fundamental liberty interests recognized by

the Court,” the right of parents to direct the care and

custody of their children. Troxel v. Granville, 530 U.S. 57,

65 (2000). “[R]eal, everyday ties” are indispensable to

meaningful parent-child “connection[s].” Tuan Anh

Nguyen v. INS, 533 U.S. 53, 64-65 (2001). Those

connections then “promot[e] the ‘peace and tranquility of

States and families.’” Michael H. v. Gerald D., 491 U.S.

110, 125 (1989) (Scalia, J. plurality). And the Amici

States—all States, really—have “an interest in not

undermining that [family] unit.” Wynn v. Carey, 582 F.2d

1375, 1385 (7th Cir. 1978). They should avoid anything

that “hinder[s]” parents’ ability to carry out their duties.

Prince, 321 U.S. at 166.

But in the Fourth Circuit, parents have no right to

challenge policies like the Parental Preclusion Policy—

despite their affront to these core rights—because most

parents will now be found to lack standing. According to

a majority opinion here, only parents of children that

“have gender support plans, are transgender or are …

struggling with issues of gender identity” might have

standing. Pet.App.5a. But among other things, that

approach presents a catch-22. The Policy’s secret nature

deprives parents of key information about their children’s

lives and deprives them of the information they’d need to

sue. And once parents know that their child is exploring

his or her gender identity, the parents’ harm—and thus

standing to sue—may be gone. Family ties, then, will fall

by the wayside.

3

This logic can’t be right. Parents must have the right

to ask for the courts’ help in securing the fundamental

right to know what schools are doing with their kids. So

the Court should grant certiorari here to ensure all

parents have a way to vindicate their fundamental familial

interests. And beyond that, the Court should grant

certiorari to explain that policies like this one—policies

that intentionally keep parents in the dark—cannot be

justified in our parent-first society.

SUMMARY OF ARGUMENT

In the past several years, school districts have enacted

policies that forbid school officials from disclosing

information about a student’s transgender status to

parents unless the student authorizes the disclosure.

These policies violate parents’ fundamental rights by

preventing them from making crucial decisions about

their child’s identity and health. Yet in the Fourth Circuit,

most parents have no means to even ask for relief.

I. The Fourth Circuit did not suggest that the Policy

passes constitutional muster, as it refused to even engage

the issue. Instead, the court said that parents must wait

until they learn their “children have gender support plans,

are transgender or are even struggling with issues of

gender identity.”

Pet.App.5a.

But this limitation

misunderstands the harm the Policy causes. The Policy’s

secretive nature hurts Parents by shutting them out of the

decision-making process. The Fourth Circuit’s holding

deepens conflicts in the circuit courts related to

transgender minors and school policies. It worsens

confusion on these issues all around. And without this

Court’s review, parents in Montgomery County and other

places where similar policies have taken effect will have no

recourse.

4

II. In truth, the Policy does not pass constitutional

muster. It conflicts with how our Constitution treats

parental rights.

Parents get “to make decisions

concerning the care, custody, and control of their

children.” Troxel, 530 U.S. at 66. “Parents can and must

make those judgments.” Parham v. J.R., 442 U.S. 584, 603

(1979). And “[s]imply because the decision of a parent is

not agreeable to a child or because it involves risks does

not automatically transfer the power to make that decision

from the parents to some agency or officer of the state.”

Id. Montgomery County forgets all that. Its choice to

erase parents from the equation can have severe

consequences for the child, the parents, and the

community.

REASONS FOR GRANTING THE PETITION

I.

The Court should grant the Petition to clarify

that parents have standing to bring cases in this

confused area of the law.

A. In the last five-or-so years, the number of

transgender-identifying children has rapidly grown. In

2017, just 0.7% of high schoolers so identified. See JODY

L. HERMAN ET AL., AGE OF INDIVIDUALS WHO IDENTIFY

AS TRANSGENDER IN THE UNITED STATES, WILLIAMS

INST. (2017), https://tinyurl.com/29tvbdbk. By 2022, that

number “doubled” to 1.43%—or around 300,000 high

schoolers. JODY L. HERMAN ET AL., HOW MANY ADULTS

AND YOUTH IDENTIFY AS TRANSGENDER IN THE UNITED

STATES, WILLIAMS INST. (2022), https://tinyurl.com/

345tyu65. Younger teens are particularly likely to identify

as transgender: while only 7.6% of the population, they’re

18% of transgender people. See Azeen Ghorayshi, Report

Reveals Sharp Rise in Transgender Young People in the

5

U.S., N.Y. TIMES (June 10, 2022), https://tinyurl.com/

3anymcs3.

Schools have struggled with how to address this

growing population, wrestling with whether and how to

support various means for students to transition to a

different gender identity. See Leor Sapir, The ‘T’

Piggybacking on the ‘LGB,’ CITY JOURNAL (Sept. 27,

2022), http://tinyurl.com/5n7ut997 (providing statistics).

But across the board, transitioning has “significant

effects” on children in terms of “psychological

functioning.” HILARY CASS, INDEPENDENT REVIEW OF

GENDER IDENTITY SERVICES FOR CHILDREN AND YOUNG

PEOPLE:

INTERIM REPORT, CASS REV. (2022),

https://tinyurl.com/3z6bkcay (UK NHS-commissioned

independent report). And the jury is still out on whether

those effects are overall positive—that is, if transitioning

on balance helps. See, e.g., James S. Morandini et al., Is

Social Gender Transition Associated with Mental Health

Status in Children and Adolescents with Gender

Dysphoria?, 52 ARCHIVES OF SEXUAL BEHAVIOR 1045,

1057 (2023) (noting, for example, that living a double life

introduces another harm called “concealment stress”).

What’s clear to everyone, though, is that transitioning “is

not a neutral act.” Cass, supra, at 63.

Rather than engage with these difficult questions by

working openly and building consensus, schools have often

chosen secrecy. Organizations like the Human Rights

Campaign or National Education Association encourage

schools to exclude parents from decision-making. See

GLSEN, MODEL LOCAL EDUCATION AGENCY POLICY ON

TRANSGENDER

AND

NONBINARY

STUDENTS,

https://tinyurl.com/yrjefsm6 (2020); Michael Torres,

Whether You Like It Or Not, CITY JOURNAL (July 18,

2023), https://tinyurl.com/33z27shc. And schools have

6

listened. Right now, over 1,000 districts that include over

18,000 schools and nearly 11 million students across 37

States and the District of Columbia have parentalpreclusion policies. List of School District Transgender –

Gender Nonconforming Student Policies, PARENTS

DEFENDING EDUC., https://tinyurl.com/2p8twbe8 (last

updated Jan. 3, 2023). Under these policies, teachers and

administrators secretly help students “obtain medical

care, housing and legal advice without the parents’

knowledge.” Katie Baker, When Students Change Gender

Identity, and Parents Don’t Know, N.Y. TIMES (Jan. 23,

2023),

https://tinyurl.com/2m99ey9h

(cataloguing

examples across every demographic). And some push for

an even more aggressive approach, in which school

personnel work with other authorities to remove students

from homes considered insufficiently supportive. See, e.g.,

Melissa Moschella, Natural Law, Parental Rights, and

the Defense of “Liberal” Limits on Government: An

Analysis of the Mortara Case and Its Contemporary

Parallels, 98 NOTRE DAME L. REV. 1559, 1582-91 (2023).

In short, the growing population of affected students, a

lack of clarity in legal standards, the increasing

prevalence of proposals for parental-preclusion policies,

and opaqueness in the relevant medical evidence has made

“the transgender student parental notification debate …

one of the most prevalent and complex issues that states

and educational institutions must address.” Stephen

McLoughlin, Toxic Privacy: How the Right to Privacy

Within the Transgender Student Parental Notification

Debate Threatens the Safety of Students and

Compromises the Rights of Parents, 15 DREXEL L. REV.

327, 331 (2023).

In fact, most every level and branch of government has

had trouble responding to these issues; sound legal

7

analysis is disappointingly absent. Many school districts,

for example, justify withholding a child’s transgender

status based on flawed interpretations of the Family

Educational Rights and Privacy Act or Title IX. Torres,

supra; see also Priscilla DeGregory & Katherine Donlevy,

NJ school districts temporarily blocked from enforcing

requirement to notify parents if child changes gender

identity, N.Y. POST (Aug. 18, 2023, 9:36 p.m.),

https://tinyurl.com/ykums6na (describing a New Jersey

district’s litigation over a parental-preclusion policy). And

federal law isn’t the only thing to blame. For years,

“[u]ncertainties in state legislative activity” have plagued

this issue as well. Erin Cranor, Out in Public: Legal and

Policy Benefits of Open, Cooperative K-12 Transgender

Policy Development, 2019 B.Y.U. EDUC. & L.J. 191, 204

(2019) (naming it the “unpredictable milieu”). Meanwhile,

state and federal agencies alike have created “a messy

landscape of confusing and conflicting rules” for

transgender students and their parents. Drew Fabricius,

Competing for the Starting Line: How Ombuds Programs

Can Help Transgender Student-Athletes Participate

Under Various State Policies, 2023 J. DISP. RESOL. 85,

112 (2023).

So it’s no surprise that lawsuits “about the nature and

scope of parental rights” related to their children’s sexual

identities are “proliferat[ing].”

Elizabeth R. Kirk,

Parental Rights: In Search of Coherence, 27 TEX. REV. L.

& POL. 729, 730 (2023). The common thread through these

lawsuits is that schools make a practice of acting “without

[] parents’ knowledge or consent.” Id.; see also Maggie

Paino & Suzanne Eckes, Do Parents Have A

Fundamental Right to Know About Their Child’s Gender

Identity in School?, 405 EDUC. L. REP. 17 (2022) (noting

schools’ struggle to respect “parents’ right to know about

their child’s gender identity”). Just between 2020 and

8

2023, parents filed nearly a dozen high-profile lawsuits

challenging parental-preclusion policies. Baker, supra;

see also Kirk, supra (listing those lawsuits as one category

among many). This case, of course, is one of them.

These lawsuits have produced an inconsistent mass of

decisions about how schools and other institutions must

address children who raise questions about their gender

identity. See Ryan Bangert, Parental Rights in the Age of

Gender Ideology, 27 TEX. REV. L. & POL. 715, 724 (2023)

(observing “starkly divergent results” in federal parental

rights cases); Desirée LeClercq, The Disparate

Treatment of Rights in U.S. Trade, 90 FORDHAM L. REV.

1, 53 (2021) (noting this uncertainty by federal courts).

For example, circuits disagree about whether state laws

concerning gender-related treatments for minors likely

violate parental rights. Compare Brandt by and through

Brandt v. Rutledge, 47 F.4th 661, 671 (8th Cir. 2022)

(likely violate), with L.W., 73 F.4th at 413 (likely do not

violate). “[T]here is a fundamental circuit split” between

the First and Third circuits on the extent of parents’ right

to direct in-school instruction on transgender issues, too.

Tatel v. Mt. Lebanon Sch. Dist., No. 22-cv-837, 2023 WL

3740822, at *12 (W.D. Pa. May 31, 2023) (summarizing

cases). And on our specific issue—parents’ right to know

about a student’s wish to transition—courts disagree

sharply. Compare Willey v. Sweetwater Cnty. Sch. Dist.

No. 1 Bd. of Trustees, No. 23-cv-69, 2023 WL 4297186, at

*14 (D. Wyo. June 30, 2023) (right to know), and Ricard v.

USD 475 Geary Cnty., KS Sch. Bd., No. 5:22-cv-4015, 2022

WL 1471372, at *8 (D. Kan. May 9, 2022) (same), with

Regino v. Staley, No. 22:3-cv-32, 2023 WL 4464845, at *3

(E.D. Cal. July 11, 2023) (no right to know).

Altogether, courts appear just as confused as schools

are when it comes to how to grapple with transgender

9

students in schools. See Rachel N. Morrison, Gender

Identity Policy Under the Biden Administration, 23

FEDERALIST SOC’Y REV. 85, 122 (2022) (saying it’s

generally unclear how agencies, “schools, and courts will

treat” transgender-related policies).

B. This confusion in this area of the law now infects

standing. Ronna Greff Schneider, School Matters, 92 U.

CIN. L. REV. 1, 8 (2023) (noting sharp increase in lowercourt opinions handling issues discussed in John Doe).

But America can’t afford confusion over standing in these

cases because standing is an indispensable component of

resolving all these substantive questions in court. If the

courts aren’t clear on standing—and especially on the

standing of children’s guardians and next friends—then

resolving the downstream questions about the

intersection of parental rights and care of students

(particularly those identifying as transgender) becomes

impossibly difficult. Parents, state legislatures, schools,

interest groups, courts—everyone remains in the dark

until clear answers emerge on standing. And these issues

won’t disappear. In fact, the numbers say they’re just

beginning. Whether the Parents have standing is

therefore an important question of federal law not yet

settled.

The Court should thus grant the Petition to settle the

question in Parents’ favor. No one disagrees that Parents

show causation and redressability—the only question is

whether they show an “injury in fact” that is “imminent.”

Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020).

Parents’ children attend schools that employ the

challenged policy, but the parents haven’t provided any

evidence their children identify as transgender. Even so,

it’s plain enough Parents have standing. Basic standing

principles yield this proposition: a party with a right to

10

know certain information has standing to challenge a

governmental policy that says if the government discovers

that information it will intentionally hide it from the rightholding party. And so “[w]here a school district or its

employees affirmatively act to prevent a parent from

having information necessary to make informed decisions

about their child’s safety, the parent has standing to bring

their own claims.” Posey v. S.F. Unified Sch. Dist., No.

23-cv-2626, 2023 WL 8420895, at *6 (N.D. Cal. Dec. 4,

2023).

First, imminence (one of the decisive factors in the

decision below) is an “elastic concept” intended only to

ensure injuries aren’t “too speculative.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 564 n.2 (1992). Clapper itself says

this Court doesn’t always or “uniformly require plaintiffs

to demonstrate that it is literally certain” parties will

suffer the alleged harm, Clapper v. Amnesty Int’l USA,

568 U.S. 398, 414 n.5 (2013)—though that’s how the lowercourt opinion reads. Indeed, this Court often allows

parties to show “imminence” in flexible, creative ways—

as in pre-enforcement challenges, for example. Laird v.

Tatum, 408 U.S. 1, 13-14 (1972). Those challenges most

often protect First Amendment rights, see, e.g., Jones v.

Coleman, 848 F.3d 744, 749 (6th Cir. 2017), but courts

allow “preenforcement review of facial due process

challenge” like the one here, too, Seegars v. Gonzales, 396

F.3d 1248, 1254 (D.C. Cir. 2005); see also Draper v.

Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.) (Due

Process pre-enforcement challenge to state firearm law).

Another example is data-breach cases, where plaintiffs

have standing when it’s “reasonable to infer that there

remain[ed] a substantial risk” their data could be stolen

again. In re U.S. Off. of Pers. Mgmt. Data Sec. Breach

Litig., 928 F.3d 42, 54-55 (D.C. Cir. 2019) (cleaned up). In

these forward-looking sorts of cases, even a “small”

11

“probabilistic” injury can suffice. Vill. of Elk Grove Vill.

v. Evans, 997 F.2d 328, 329 (7th Cir. 1993).

Second, and relatedly, this Court doesn’t always

require “a plaintiff to expose himself to liability before

bringing suit to challenge the basis for the threat.”

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29

(2007). Cases involving especially vulnerable persons are

good examples. Helling v. McKinney, 509 U.S. 25, 33-34

(1993). Prisoners, for example, needn’t “wait until actual

casualties occur” to challenge “unreasonable threat[s]” to

their safety. Hoptowit v. Spellman, 753 F.2d 779, 784 (9th

Cir. 1985).

The States’ experience shows all too clearly that

children are the “least powerful of groups and most

vulnerable of persons.” In re K.H., 773 S.E.2d 20, 29 n.10

(W. Va. 2015) (cleaned up). They are the group “most in

need of” care and protection. Id. So requiring Parents to

“wait” to sue “until [they] actually lose[]” parental rights

and see their children suffer devastating harm from any

decisions that result “place[s] [them] between the devil

and the deep blue sea.” Sciolino v. City of Newport News,

480 F.3d 642, 649 (4th Cir. 2007) (cleaned up). The Parents

shouldn’t have to wait for “a tragic event” to ensure their

children are protected. Vega v. Semple, 963 F.3d 259, 276

(2d Cir. 2020). Yet under the lower court’s logic, no one

could preemptively challenge this policy “until it is too

late” for students and parents. See Massachusetts v. U.S.

Dep’t of Health & Hum. Servs., 923 F.3d 209, 222 (1st Cir.

2019).

That answer not only violates our moral

sensibilities, see Nat Stern, Separation of Powers,

Executive Authority, and Suspension of Disbelief, 54

HOUS. L. REV. 125, 142 (2016), but it’s legally unnecessary,

too.

12

At least in other contexts, courts at all levels have

usually taken a practical approach that should support

Parents’ standing here. Take Bay County Democratic

Party v. Land, 347 F. Supp. 2d 404, 423 (E.D. Mich. 2004),

where the court held the Democratic Party had standing

to challenge state rules about ballot casting and

tabulating. The court reasoned that the Party’s members

wouldn’t

“know

about

their

impending

disenfranchisement until election day when it [would] be

too late to challenge the rules of the secretary and director

of elections.” Id. The court’s point was pragmatic: making

the Party wait to sue until the policies were implemented

on Election Day would work the precise voting-rights

harm the Party was trying to stop.

The same practical considerations say standing should

exist for Parents here. Making Parents wait to sue until

their child is on the Policy and Parents independently

discover their child’s status would hurt their parental

rights exactly like they’re worried about. Parents’

inability to identify specific harms here “is

understandable” because Montgomery County’s actions

“by their nature” “cannot be specifically identified in

advance.” Sandusky Cnty. Democratic Party v.

Blackwell, 387 F.3d 565, 574 (6th Cir. 2004). The Court

should therefore adopt a more pragmatic approach to

standing than the Fourth Circuit did. See NAACP v.

Alabama, 357 U.S. 449, 459 (1958) (showing that each

case’s standing analysis should carefully consider how

standing affects underlying rights).

Third, the circuit court’s decision gives rise to a catch22: Parents can show standing only if they overcome

Montgomery County’s secrecy efforts and discover their

child is transitioning. That may be an impossibility, as

schools have even been known to alter documentation to

13

hide that information. See, e.g., Compl. ¶¶ 114-36, Mead

v. Rockford Pub. Sch. Dist., No. 1:23-cv-1313 (W.D. Mich.

Dec. 18, 2023), ECF No. 1. But even if the parents do find

out about enough information to show standing under the

Fourth Circuit’s test, then their secrecy injury dissipates

in the same moment, and they don’t need a claim at all

anymore. The Court should reject this result. NAACP,

357 U.S. at 459 (rejecting a standing theory that would

“nullif[y]” the claimed “right” the “moment” the plaintiff

asserts it). The Policy subjects Parents to a secret policy

and boxes them out of their child’s life indefinitely—that’s

enough harm for standing purposes.

C. Along the way to stripping Parents of their

otherwise self-evident right to bring suit, the Fourth

Circuit majority also warped some of this Court’s key

standing decisions.

Most obviously, the lower court got this Court’s

decision in Parents Involved wrong. Parents Involved in

Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

Parents Involved gave parents standing “even though it

was far from clear that the school district would ever apply

that system to any of their children.” Robin Kundis Craig,

Administrative Law in the Roberts Court: The First Four

Years, 62 ADMIN. L. REV. 69, 84 (2010). But what

mattered to this Court was that the school district policy

forced parents to participate in an unconstitutional

system. Parents Involved, 551 U.S. at 719; see also

Pet.App.21a. So too here.

The circuit court incorrectly elided Parents Involved

by narrowing Parents Involved to apply to just equalprotection cases. Pet.App.22a (“But nothing about

Parents Involved nor subsequent Supreme Court

decisions indicate the standing standard from Parents

Involved applies beyond the context of equal protection

14

claims.”). That’s wrong; the Court applied it differently

just a year ago. See West Virginia v. EPA, 142 S. Ct. 2587,

2594 (2022) (applying the Parents Involved voluntarycessation-as-mootness rule in an APA action). Other

lower courts haven’t read Parents Involved that way,

either; they’ve used Parents Involved in all sorts of

standing contexts. See, e.g., Parents Defending Educ. v.

Linn Mar Cmty. Sch. Dist., 83 F.4th 658, 666 (8th Cir.

2023) (applying Parents Involved to show standing in

First Amendment context); Franciscan All., Inc. v.

Becerra, 47 F.4th 368, 376 n.37 (5th Cir. 2022) (Title

IX/RFRA); Planned Parenthood of Greater Wash. & N.

Idaho v. DHHS, 946 F.3d 1100, 1108-1109 (9th Cir. 2020)

(competitor-standing issue in lawsuit challenging DHHS

Rule on statutory grounds); Liddell v. Special Admin. Bd.

of the Transitional Sch. Dist. of the City of St. Louis, 894

F.3d 959, 965-66 (8th Cir. 2018) (interpretation of a

settlement agreement); Ollier v. Sweetwater Union High

Sch. Dist., 768 F.3d 843, 864 (9th Cir. 2014) (Title IX). And

at least one lower court has used Parents Involved to find

due-process-claim standing to challenge potential “future

injury.” Martinez v. Malloy, 350 F. Supp. 3d 74, 88 (D.

Conn. 2018).

The Fourth Circuit majority’s take on Clapper as the

central, clinching case was also wrong, as Clapper is

different from this case. There, the Court held that the

plaintiffs failed to satisfy the imminence requirement

when they tried to show a potential future harm using only

a “speculative chain of possibilities.” Clapper, 568 U.S. at

414; see also id. at 410 (outlining the five detailed and

complicated steps in the plaintiffs’ inferential chain). But

the Parents don’t need anything like Clapper’s speculative

chain here. The Board has already admitted it enforces

its preclusion policy. So the only thing missing from

Parents’ allegations is this two-word sentence from one of

15

the Parents’ children to school personnel: “I’m

transgender.”

And because the Policy hides that

disclosure, it might well have already happened. The lack

of a speculative chain “distinguish[es]” Clapper from this

case. Schuchardt v. President of the U.S., 839 F.3d 336,

350-51 (3d Cir. 2016) (awarding standing to a plaintiff

challenging NSA information-collection when plaintiff

showed only that he was possibly harmed). Clapper is also

inapplicable because it applied an “especially rigorous”

“standing inquiry” to a claim that touched the “fields of

intelligence gathering and foreign affairs.” 568 U.S. at

408; see also Hassan v. City of N.Y., 804 F.3d 277, 291 (3d

Cir. 2016) (holding certain Muslims had standing to sue

New York’s surveillance program although they couldn’t

allege that they personally had been surveilled because

they “possesse[d] something more than a general interest

in the proper execution of the laws” (quoting Stark v.

Wickard, 321 U.S. 288, 304 (1944))).

So the Fourth Circuit’s mistreatment of several of this

Court’s key standing authorities calls for intervention, too.

See Lambert v. Wicklund, 520 U.S. 292, 293 (1997)

(summarily reversing a lower court decision on parental

notification that was “in direct conflict with [this Court’s]

precedents”).

D. Finally, the court below ignored prudential aspects

this Court considers in resolving justiciability concerns.

Standing isn’t “an exercise in conceptual analysis but an

attempt to advance the purposes behind the case-orcontroversy requirement of Article III, including the

guaranty of actual adversity between the parties, the

limitation on the power of federal courts, and the

reservation of judicial resources to resolve more concrete

and pressing disputes.” Fla. State Conf. of NAACP v.

Browning, 522 F.3d 1153, 1161 (11th Cir. 2008) (cleaned

16

up). What matters is if the party has a “personal stake” in

the matter. U.S. Parole Comm’n v. Geraghty, 445 U.S.

388, 403 (1980).

Here, the Policy specifically targets the parents

challenging the policy. The Policy does not harm the

general population. Nor does this Policy affect parents

who are fine with the steps to be taken under the Policy

(even if they miss the chance to consent expressly). So

Parents’ suit isn’t some kind of “generalized

grievance[]”—that is, “undifferentiated and ‘common to

all members of the public.’” Lujan, 504 U.S. at 573-74.

Instead, the Policy harms parents of children subject to

the Policy who want to raise their children as they see fit

counter to the school’s preferred approach. They bring

the very thing targeted as proof of standing. The court

below got it wrong in ignoring these real harms.

Thus, granting certiorari here would give this Court a

chance to remind courts to approach standing with a clear

eye toward the realities of the situations they are asked to

address.

II.

The Court should also grant the Petition to

protect crucial parental rights.

A. Beyond standing, Parents have it right on the

broader point: Policies like the one here interfere with the

parent-child relationship in an unconstitutional way.

Parental rights are a “fundamental liberty interest.”

Santosky v. Kramer, 455 U.S. 745, 753 (1982). They come

from natural law—Blackstone called it “the most

universal relation in nature.” 1 William Blackstone,

Commentaries on the Laws of England *446 (1753). Or as

John Locke put it: “[t]he power ... that parents have over

their children, arises from that duty which is incumbent

on them, to take care of their offspring, during the

17

imperfect state of childhood.” John Locke, Second

Treatise of Government ch. 6, § 58 (1690). This right

recognizes that children lack the “maturity, experience,

and capacity for judgment” that adults do and that the

“natural bonds of affection lead parents to act in the best

interests of their children.” Parham, 442 U.S. at 602.

Often, our laws accordingly “restrict[] certain choices that

… [children] are not yet ready to make with full benefit of

the costs and benefits attending such decisions.”

Thompson v. Oklahoma, 487 U.S. 815, 825 n.23 (1988). So

parents have a duty to raise their children, and with that

duty comes the attendant right to make choices for their

child.

This Court has consistently recognized that raising

one’s child is an “essential” right, Meyer v. Nebraska, 262

U.S. 390, 399 (1923), grounding the right in the liberty

interest of the due process clause, id. at 399-400. Over and

over again, the Court has noted that a parent’s right to

raise one’s own child is a “basic civil right[] of man,”

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and “far

more precious … than property rights,” May v. Anderson,

345 U.S. 528, 533 (1953). And this right comes from

history and tradition: “The history and culture of Western

civilization reflect a strong tradition of parental concern

for the nurture and upbringing of their children.”

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). Quite

simply, parental freedom to raise their children is “older

than the Bill of Rights” with its source “in intrinsic human

rights.” Smith v. Org. of Foster Families for Equal. &

Reform, 431 U.S. 816, 845 (1977).

This Court recognizes the primacy of parents in

rearing their children, and it has rejected the view that

“children are merely wards of the state.” Bangert, supra,

at 720. In Prince, for example, this Court said that

18

parents prepare their children “for obligations the state

can neither supply nor hinder. And it is in recognition of

this that these decisions have respected the private realm

of family life which the state cannot enter.” 321 U.S. at 166

(cleaned up). Or as the Court put it in Pierce v. Society of

the Sisters of the Holy Names of Jesus and Mary: “[t]he

child is not the mere creature of the State,” but “those who

nurture him and direct his destiny have the right, coupled

with the high duty, to recognize and prepare him for

additional obligations.” 268 U.S. 510, 535 (1925). So when

it comes to a child’s upbringing, parents decide.

B. This case calls out for review because it directly

concerns parental rights to direct central, critical aspects

of their children’s lives. Parham, 442 U.S. at 604; Meyer,

262 U.S. at 400; Yoder, 406 U.S. at 231. For example, in

Parham, this Court addressed Georgia’s procedures for

committing a child to a mental hospital based on a parent’s

request. The Court found that the Constitution presumes

that parents act in their child’s best interest and that

parents have wide latitude to make tough decisions—

“[n]either state officials nor federal courts are equipped to

review such parental decisions.” Parham, 442 U.S. at 604.

And that “[s]imply because the decision of a parent is not

agreeable to a child or because it involves risks does not

automatically transfer the power to make that decision

from the parents to some agency or officer of the state.”

Id. at 603. That’s because “significant intrusion into the

parent-child relationship” is “at odds with the

presumption that parents act in the best interests of their

child.” Id. at 610.

A parent’s right to direct the care and custody of their

minor children is also acute when directing their religious

upbringing and education. “[I]t is the natural duty of the

parent to give his children education suitable to their

19

station in life.” Meyer, 262 U.S. at 400. So whether

parents choose to send their children to religious schools

or teach them at home, this Court has recognized that the

Constitution ensures that “parents have the fundamental

liberty to choose how and in what manner to educate their

children.” Zelman v. Simmons-Harris, 536 U.S. 639, 680

n.5 (2002) (Thomas, J., concurring). And like medical

decisions, to hold otherwise would “call into question

traditional concepts of parental control over the religious

upbringing and education of their minor children.” Yoder,

406 U.S. at 231.

Many State constitutions likewise “protect the

fundamental right of parents to make decisions

concerning the care, custody, and control of their

children.” In re Visitation of L.M., 859 S.E.2d 271, 279

(W. Va. 2021). But many States have recognized the

importance of parental rights beyond those guaranteed by

their state constitutions and have led the way in ensuring

parental involvement in their child’s education. For

example, at least 32 States are considering legislation

related to creating a “parental bill of rights,” which is

designed to give parents a greater say in their education.

States often understand that parental rights are served

by greater transparency. One common way is by

requiring public schools to post curriculums and

instructional materials online, which allows parents to

then object to a school’s use of a specific material. See

FLA. STAT. § 1006.28(2); W. VA. CODE § 18-5-27; GA. CODE

§ 20-2-786. Many States today also provide support to

parents to allow them to send their children to private

schools or other nonpublic education. See, e.g., ARK. CODE

§ 6-41-901(b); MISS. CODE § 37-173-3; UTAH CODE § 53F4-302. These programs reflect the States’ commitment to

20

empowering parents to make decisions for their children’s

education that they believe is best.

When things work as they should, States promote

parental rights because they recognize that parents have

the “primary role” “in the upbringing of their children.”

Yoder, 460 U.S. at 232. Beyond that, though, States know

that protecting the interpersonal dynamics and

relationships between parents and children benefits

everyone. “[T]he family is the primary unit through which

social values and moral precepts are transmitted to the

young.” Wynn, 582 F.2d at 1385. And sound parent-child

relationships have both “short and long-term

consequences for positive mental well-being,” Mai

Stafford et al., Parent-child relationships and offspring’s

positive mental wellbeing from adolescence to early older

age, 11 J. POSITIVE PSYCH. 326, 335 (2015), and “allow[]

adolescents to form their own secure attachments with

friends and romantic partners,” Grace Iarocci & Emily

Gardiner, Social Competence During Adolescence Across

Cultures, in INTERNATIONAL ENCYCLOPEDIA OF THE

SOCIAL & BEHAVIORAL SCIENCES 216, 217 (2015 2d ed.).

So “the State has an interest in not undermining that unit”

because the children today become the citizens of

tomorrow. Wynn, 582 F.2d at 1385.

Generally, States recognize the opposite is true, too.

Intruding on parent-child relationships often imposes a

heavy social and financial toll on society. “[P]oor family

relationships in adolescence can have severe and longlasting health consequences.” Susanne Alm et al., Poor

Family Relationships in Adolescence and the Risk of

Premature Death: Findings from the Stockholm Birth

Cohort Study, 16 INT’L J. OF ENV’T RSCH. AND PUB.

HEALTH, no. 10, 2019, at 1, available at

https://bit.ly/3NFUz84. A poor relationship with parents

21

is “associated with psychological distress in midadulthood,” makes adult interpersonal conflict more

likely, lowers “educational attainment, social class, and

income” and, by extension, increases ill-health and

mortality. Id. at 2. And where relationships break down,

the States end up bearing the brunt of these medical,

criminal, and social costs. See, e.g., Johnson’s Prof’l

Nursing Home v. Weinberger, 490 F.2d 841, 843 (5th Cir.

1974) (noting that generally the States “bear” medical

costs); Gerard E. Lynch, Sentencing: Learning from, and

Worrying About, the States, 105 COLUM. L. REV. 933, 936

(2005) (saying the States “bear the brunt of the war on

crime and its associated costs.”). So the States want to do

everything in their power to promote healthy and thriving

parent-child relationships.

But the Policy threatens the integrity of the family unit

by fostering distrust and fear—and shows what happens

when States and local officials forget the centrality of

parents. This Court should take up the Petition and

preserve parental rights—and the States’ interests in

them.

A final note: there’s no time to wait. Percolation has

judicial and social costs.

Bryan Lammon, Rules,

Standards, and Experimentation in Appellate

Jurisdiction, 74 OHIO ST. L.J. 423, 439 (2013). So its

benefits “arise under” “limited and context-specific”

conditions. Michael Coenen & Seth Davis, Percolation’s

Value, 73 STAN. L. REV. 363, 423 (2021). Yet percolation

shouldn’t be the default: it’s valuable only “on a sporadic

and infrequent basis” and not “presumptively

worthwhile.” Id. This “underlying issue” isn’t the sort of

legal question the Court should wait years to decide. Id.

This Court has often noted that children are an especially

vulnerable population, see generally Abington Sch. Dist.

22

v. Schempp, 374 U.S. 203 (1963)—doubly so for those

children dealing with mental health problems or genderor sex-identity confusion. Decisions made for those

children—in either direction—permanently change their

lives. Both sides agree that, in these sensitive and charged

situations, the wrong move could shatter a person.

Granting the Petition would therefore ensure that these

irreversible decisions are being made in the way our

Constitution intends.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Principal Deputy Solicitor

General

Counsel of Record

FRANKIE A. DAME

SPENCER J. DAVENPORT

Assistant Solicitors

General

Counsel for Amicus Curiae State of West Virginia

23

ADDITIONAL COUNSEL

TREG TAYLOR

Attorney General

State of Alaska

MICHAEL T. HILGERS

Attorney General

State of Nebraska

ASHLEY MOODY

Attorney General

State of Florida

DREW WRIGLEY

Attorney General

State of North Dakota

CHRIS CARR

Attorney General

State of Georgia

GENTNER DRUMMOND

Attorney General

State of Oklahoma

RAÚL LABRADOR

Attorney General

State of Idaho

ALAN WILSON

Attorney General

State of South Carolina

KRIS KOBACH

Attorney General

State of Kansas

MARTY JACKLEY

Attorney General

State of South Dakota

JEFF LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

ANDREW BAILEY

Attorney General

State of Missouri

SEAN D. REYES

Attorney General

State of Utah

AUSTIN KNUDSEN

Attorney General

State of Montana

JASON MIYARES

Attorney General

Commonwealth of Virginia