Jane Doe v. Manchester School District et al.

RSA 193-A et seq…………………………………………………………………15 -

QUESTION PRESENTED Did the superior court err in dismissing the First Amended Complaint when it found that the Policy did not violate the plaintiff’s constitutional parenting rights, despite the allegation that the Policy encourages school officials to affirmatively conceal her child’s open and public gender identity transition in school from her? TEXT OF CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES AND REGULATIONS CITED U.S. Cons. Amend XIV No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin. 193:39 Discrimination Prevention Policy Required. – Each school district and chartered public school shall develop a policy that guides the development and implementation of a coordinated plan to prevent, assess the presence of, intervene in, and respond to incidents of discrimination on the basis of age, sex, gender identity, sexual orientation, race, color, marital status, familial status, disability, religion, national origin, or any other classes protected under RSA 354-A. Manchester Board of School Policy 100.1 Reprinted in Appendix pages 36-41.

I. STATEMENT OF FACTS AND OF THE CASE A. Jane Doe’s Inadvertent Discovery Her Minor Child’s Social Transitioning At School During the fall of 2021, Jane Doe became aware that her minor child, “M.C.” had asked teachers and students to address M.C. by a name typically associated with a gender that is different from M.C.’s sex at birth. Appx. at 26. She also learned teachers and others at the school were acting consistent with the child’s request. Appx. at 26. Jane Doe only became aware of this fact through an inadvertent disclosure by one of M.C.’s teachers. Appx. at 26. She received no intentional notification from any school authority. Upon learning that her child was engaged in social transitioning to a different gender at school, Jane Doe engaged in several email exchanges with M.C.’s guidance counselors and others at the school. Appx. at 26. She explained that while she has always been open in matters of sexuality and sexual attraction between people of all kinds, she had recently become aware that M.C. was engaging in social transitioning at school and that she would like the school to continue to treat M.C. according to M.C.’s birth gender, to address M.C. by the name on the district’s mandatory permanent pupil record (M.C.’s given name), and to address M.C. using the pronouns that correspond to M.C.’s biological sex. Appx. at 26. Two of M.C.’s teachers responded to Jane Doe’s emails by expressing their belief that Jane Doe’s instructions concerning M.C. should be respected. Appx. at 26-27. The first teacher wrote, “I do think that a parent should be giving permission for their child to be called by any other name.” The teacher wrote that the teacher, “had a discussion with [M.C.] about [M.C.’s] name. [M.C.] writing [M.C.’s] given name on [M.C.’s] [school] work will help all of us.” Appx. at 26.

The second teacher wrote, “[w]e will absolutely respect your wishes and continue to call [M.C. by M.C.’s birth name] on team!” Appx. at 27. Minutes later, Jane Doe received an email from the building principal, which read as follows: Good Morning [Jane Doe]. While I respect and understand your concern, we are held by the District policy as a staff. I have quoted our district policy below, which outlines the fact that we cannot disclose a student’s choice to parents if asked not to. If [M.C.] insists on being called [M.C.’s desired name] as a staff we have to respect that according to the policy or unfortunately we can be held accountable despite parents’ wishes. Appx. at 27 (emphasis added). B. Adoption of the Policy On February 8, 2021, the Manchester Board of School Committee (the “Board”) adopted Policy 100.1 (hereinafter “the Policy”). Appx. at 20, 36-38. The Policy purports to grant a privacy interest to students while at school that transcends, and is superior to, the parent-child relationship. The relevant provision of the Policy, as originally adopted read as follows: A. Privacy The Board recognizes a student's right to keep private one's transgender status or gender non-conforming presentation at school. Information about a student's transgender status, legal name, or gender assigned at birth also may constitute confidential information. School personnel should not disclose information that may reveal a student's transgender status or gender non-conforming presentation to others, including parents and other school personnel, unless legally required to do so or unless the student or parent has authorized such disclosure. Transgender and gender non-conforming students have the right to discuss and express their gender identity and expression openly and to decide

when, with whom, and how much to share private information. When contacting the parent or guardian of a transgender or gender non-conforming student, school personnel should use the student's legal name and the pronoun corresponding to the student's gender assigned at birth unless the student, parent, or guardian has specified otherwise. Any student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided with a reasonable alternative to meet the need for that individual’s privacy, regardless of gender identity. Appx. at 21-22, 36-38. The Board subsequently amended the Policy to read as follows: 1 The Board recognizes a student's right to keep private one's transgender status or gender non-conforming presentation at school. Information about a student's transgender status, legal name, or gender assigned at birth also may constitute confidential information. School personnel should not disclose information that may reveal a student's transgender status or gender non-conforming presentation to others, [including parents and other school personnel, ] unless legally required to do so or unless the student or parent has authorized such disclosure. Transgender and gender non-conforming students have the right to discuss and express their gender identity and expression openly and to decide when, with whom, and how much to share private information. Nothing herein shall be construed to change the obligation of the school to take action when student safety is concerned. When [contacting the parent or guardian of] referring to a transgender or gender non-conforming student, school personnel should use the student's legal name and the 1 The amendments to the original Policy are identified as follows: Matter added to the original Policy appears in bold italics. Matter removed from original Policy appears [in brackets and struckthrough.]

pronoun corresponding to the student's gender assigned at birth unless the student, parent, or guardian has specified otherwise. Any student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided with a reasonable alternative to meet the need for that individual’s privacy, regardless of gender identity. Appx. at 24-25, 39-41. Upon the filing of the First Amended Complaint in this matter, the defendant Board filed a motion to dismiss. Appx. at 42 et seq. The plaintiff filed a timely objection. Appx. at 62 et seq. The superior court issued an Order finding that no fundamental right of the plaintiff was infringed because the Policy does not limit the ability of the plaintiff to raise her child as she sees fit. Appx. at 7. Having found no infringement of a fundamental right, the Court then applied a rational basis test, appx. at 7, found that the Policy was rationally related to a legitimate government interest, appx. at 8-9, and granted the defendants motion to dismiss. Appx. at 1, 9, 13. This appeal followed. II. SUMMARY OF THE ARGUMENT The centrality and importance of the family is an idea that predated the United States and New Hampshire Constitutions. The history and culture of Western civilization reflect a strong tradition of recognizing parental concern for the nurture and upbringing of children. Wisconsin v. Yoder, 406 US. 205, 232 (1972). It is therefore completely unsurprising that both the United States Supreme Court and the New Hampshire Supreme Court have identified the familial interest of the parents in the rearing of their children as one of our most fundamental rights. Accompanying that recognition is a strong presumption that parents who have not been declared unfit act in the best interests of their children. Because of

this, the raising of children and other aspects of family life are broadly understood to be constitutionally protected against the State’s unwarranted usurpation, disregard, or disrespect. The New Hampshire Supreme Court has provided even greater protection for those interests than its federal counterpart. Although the New Hampshire Supreme Court has not had occasion to balance parental rights against the needs of public schools to provide services to communities with diverse interests, the federal courts have done so on numerous occasions. Those cases have generally concluded that the rights of parents are at their ebb when asserted in an effort to change school curricula, pedagogy, or broad rules of order selected to serve broad constituencies. On the other hand, they are at their apex when parents are making decisions about how and where to educate their children. School policies and other rules that impinge on parental rights will only be upheld if they are necessary to advance a compelling state interest. The Policy governing transgender students by the Manchester Board of School impinges upon the plaintiff’s rights and does not advance a compelling state interest. The Policy creates a presumption that, on the request of a child, school personnel will in all ways treat a child as having one gender during the school day, and then in conversations with the child’s parent, adopt a manner of speaking that hides the school-accepted gender from the parents, and instead conforms to the parent's expectation. In this fashion, the school effectively lies to the parents about the child’s open, in-school behavior. The defendants are unable to establish a compelling government interest in enforcing the Policy. While they argue, correctly, that state law requires them to protect transgender students from bullying and harassment in school, the school district can accomplish this goal without misleading parents about a child’s open and public in-school behavior.

See Fields v. Palmdale School District, 427 F.3d 1197, 1207 (9th Cir. 2005); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 185 fn. 26 (3rd Cir. 2005)(expressly rejecting Fields court statement that parental rights do not extend beyond the threshold of the school door and also not endorsing that court’s “categorical approach” that Meyer-Pierce will only trigger a constitutional rights inquiry into whether or not the parent chose to send a child to public school, and if so, claim will fail); Arnold v. Board of Educ. Of Escambia County Ala., 880 F.2d 305, 313-14 (11th Cir. 1989)(When “parents enroll their children in public schools they cannot demand that the educational program be tailored to their individual preferences. Instead, a reasonable accommodation must be found by balancing the traditional rights of parents in the rearing of their children and the interest of the state in controlling public schools”). Federal cases finding that the parental right to direct the education of their child is limited in the public-school context are primarily concerned with the practical reality that public schools are large institutions that must provide an education to a diverse community and that they are simply incapable of providing 2 Notably, the Ninth Circuit Court of Appeal walked back formulation en banc on denial of rehearing, amending its order to read, “the Meyer-Pierce due process right of parents to make decisions regarding their children's education does not entitle individual parents to enjoin school boards from providing information the boards determine to be appropriate in connection with the performance of their educational functions….” 447 F.3d 1187, 1191 (9th Cir. 2006).

every family with a bespoke education, even if the desire for one arises from otherwise constitutionally protected sources. These cases typically arise both in the context of maintaining order and decorum; see, Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir. 2001)(upholding mandatory school uniforms policy); or the school’s policies governing locker rooms and bathrooms, as in Parents for Privacy v. Barr, 949 F.3d 1210, 1231 (9th Cir. 2020)(rejecting a challenge to policies concerning locker room and bathroom access); or curriculum and exposure to ideas. See Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 534 (1st Cir. 1995)(“If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school's choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems.”); Fields, 427 F.3d at 1206 (addressing survey given to students, accommodating the different “personal, moral, or religious concerns of every parent” would be impossible for public schools); Swanson v. Guthrie Independent School District No. I-L, 135 F.3d 694, 700 (10th Cir. 1998)(“decisions as to how to allocate scarce resources, as well as what curriculum to require are uniquely committed to the discretion of local school authorities”); Leebaert v Harrington, 332 F.3d 134, 141 (2nd Cir. 2003)(“requiring a public school to establish that a course of instruction objected to by a parent was narrowly tailored to meet a compelling state interest before the school could employ with respect to the parent’s child would make it difficult or impossible for any public school authority to administer school curricula responsive to the overall educational needs of the community and its children”). Cases involving curriculum or ideas that parents may find objectionable have been referred to as assertions of a broad-based right to “restrict

the flow of information in public schools.” Brown, 68 F.3d at 534. See also Fields, 427 F.3d at 1205. 3. The Court Should Apply The Strict Scrutiny Standard of Review Strict scrutiny is the correct standard to apply when determining the constitutionality of a statute that touches upon a fundamental right.” R.A., 153 N.H. at 95 (citing In re Sandra H., 150 N.H. 634, 638 (2004)). As parental rights are fundamental and protected by due process, strict scrutiny should be applied when examining [policies] dealing with these rights.” Id. Under the State Constitution, this test requires that [the Court] determine whether [the state action] is necessary to achieve a compelling State interest.” Id. “Additionally, [the state action] must be neither unduly restrictive nor unreasonable.” “Strict scrutiny analysis under the State Constitution is much like the “narrowly tailored’ analysis required under the Federal Constitution.” Id. (citing Seabrook Police Assoc. v. Town of Seabrook, 138 N.H. 177, 179 (1984)). See also, State v. Mack, 173 N.H. 793, 815 (2020)(applying competing interests balancing test). In the parental rights context, the maxim “strict in theory, fatal in fact” may not apply to all conceivable circumstances. By finding that application of strict scrutiny is the appropriate constitutional test, the Court will still be able to consider the important needs of the government. In R.A., Justice Broderick’s controlling opinion wrote that “the State has ‘a competing interest in the welfare of children within its jurisdiction.’” Id. at 576-77 (quoting In the Matter of Berg & Berg, 152 N.H. 658, 661 (2005)). His decision noted that “[b]ecause the parens patriae power is one of the few ways that the State has to protect the interests of minor children, I hold that this power is not only a competing interest to parents’ rights, but that in certain circumstances it qualifies as a compelling interest as well.” Id. at 577.

The court in Gruenke noted that “despite the near absolutist pronouncements [concerning the fundamental nature of parental rights made by the Supreme Court], the Court has also recognized that for some portion of the day, children are in the compulsory custody of state-operated school systems. In that setting, the state’s power is ‘custodial and tutelary, permitting a degree of supervision and control could not be exercised over free adults.’” Gruenke, 225 F.3d at 304 (quoting Veronia Sch. Dist v. Acton, 525 U.S. 646, 655 (1995)). “Thus, there may be circumstances in which school authorities, in order to maintain order and a proper educational atmosphere in the exercise of police power, may impose standards of conduct on students that differ from those approved by some parents.” Id. See also Arnold v. Board of Educ. of Escambia County Ala., 880 F.3d 305 (1989)(“[A] reasonable accommodation must be found by balancing the traditional rights of parents in the rearing of their children and the interest of the state in controlling public schools”). 4. The Policy Cannot Survive Strict Scrutiny Analysis While the plaintiff does not seek to control the flow of educational information within the school, she does seek to access information concerning her child in school out of the school, and specifically, to her. Unlike most of the precedent, her claim “is not neatly tied to considerations of curriculum or educational environment.” Ridgewood, 430 F.3d at 183. Rather, she seeks access to information that has a profound bearing on her ability to parent her child, to direct the child’s upbringing, and to guide her child on matters that “strike at the heart of parental decision-making authority on matters of the greatest importance.” At the same time, her request for information has no effect on anyone else in the school whatsoever. pIn other words, she asks only that the school not burden her right to parent her child by affirmatively concealing her child’s open, publicly

recognized, in-school behavior from her, and by accepting her determination of her child's very identity, rather than substituting their own judgment over hers. a. The Policy Impinges Upon Educational Decisionmaking Even the narrowest conception of parental rights under the Meyer-Pierce line of cases recognizes “the right of parents to be free from state interference with their choice of the educational forum itself, a choice that ordinarily determines what kind of education a child will receive.” Fields, 427 F.3d at 1207; Blau, v. Fort Thomas Public School Dist. 401 F.3d 381, 395-96 (2005) (acknowledging that parents have a fundamental right whether to send their child to a public school)(emphasis in original); Brown, 68 F.3d. at 534 (“the state cannot prevent parents from choosing a specific educational program – whether it be religious instruction at a private school or instruction in a foreign language”). Under the policy, both on its face and as applied to the plaintiff, school officials operate under a presumption that at the request of a child they will withhold pertinent, non-secretive, non-privileged information from a parent that the parent needs to exercise the right to made educational choices for a child. The trial court’s order acknowledges, as it must in ruling on a motion to dismiss, what was plainly alleged in the First Amended Complaint in which well plead allegations are accepted as true: the Policy would allow school officials to affirmatively conceal her child’s gender identity preferences from her.” Appx. at 6; 56, 65. This would be accomplished by, inter alia, following the Policy provision that states “[w]hen referring to a transgender or gender nonconforming student, school personnel should use the student’s legal name and the pronoun corresponding to the student’s gender assign at birth unless the student, parent, or guardian has specified otherwise.” Appx. at 39-40. In short, the Policy interferes with the Plaintiff’s ability to obtain truthful information that would enable her to

exercise her unquestioned parental right to choose an education forum for her child. Pursuant to the Policy, “’gender identity’ is a person’s deeply held sense or psychological knowledge of their own gender….” Appx. at 39.. A parent deciding what school to send a child to would necessarily want to obtain truthful information about the manner in which the school personnel was relating to the child, and whether the child was openly expressing transgender identity. But the clear language of the Policy and the communication received from the building principal establish that the school intended to prevent the plaintiff from obtaining the information she needed to decide whether to send her minor child to her local public school. The Policy thus burdened her right to make an informed decision about the education and upbringing of her child and as such, the Policy should have been subjected to heightened constitutional review. Notably, the interruption of the flow of reliable information from the school to the parent at the child’s request could end up depriving a child of substantial benefits. Children are not always able to accurately predict how their parents will respond to events that arise during childhood and adolescence and they may find themselves pleasantly surprised and comforted when a mother or father wraps their arms around a worried child and tell the child that he or she is loved. It is possible that a family may have the means to choose an educational forum that feels more welcoming than the local public high school does. Further, the rate of attempted suicide among people who are transitioning to a gender other than their birth sex is far higher than among the general population. Appx. at 20. By preventing the flow of information from the school to parent, the Policy interferes with potentially beneficial opportunities to receive professional counseling, whether to support a child during a period of “watchful waiting” or during transitioning.

b. The Policy Impinges Upon Right To Control Child Rearing “The [Supreme] Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)(citing Pierce, 268 U.S. at 534-35; Meyer, 262 U.S. at 399). “Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others.” Id. “Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of ordered liberty.” Id. It is clear that both parents and children benefit from the protection afforded the family, as a unit, by the Constitution. Yet the Policy places public school teachers and administrators squarely in the middle of that relationship. If the right of a parent to raise a child without undue state interference means anything, it means being able to decide whether the child is to go through life as male or female without the state overruling that determination and then disguising the fact that it has done so. Yet that is exactly what the Policy proposes to do. The precise parameters of this right do not need to be decided in this case. For example, the plaintiff here does not claim that the school is responsible for enforcing parental preferences concerning various forms of behavior, dress, or mannerisms. The plaintiff does not claim that the school is required to enforce parental concerns about what the Policy describes as “gender nonconforming” behaviors, i.e. expression that “differs from stereotypical expectations, such as ‘feminine’ boys, ‘masculine’ girls, and those who are perceived as androgynous.” Appx. at 39. But any government policy must preclude a school from exercising

blanket authority to treat the child as having a different identity than the parent believes is in the child’s best interests, absent some demonstrably unusual circumstances. Parents “do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority” over every subject, Tatel v. Mt. Lebanon School District, 2022 WL 15523185, 114 Fed.R.Serev.3d 295 (quoting Combs v. Home-Center School District, 540 F.3d 231, 248 (3rd Cir. 2008)). However, this Court should distinguish “between actions that strike at the heart of parental decision-making authority on matters of the greatest important and other action that, although perhaps unwise and offensive, are not of constitutional dimension.” Id. quoting Ridgewood, 430 F.3d at 184. “Teaching a child how to determine one’s gender identity…is a matter of great importance that goes to the heart of parenting.” Tatel at *17. In Gruenke, the court explained: It is not educators, but parents who have primary rights in the upbringing of children. School officials have only a secondary responsibility and must respect these rights. State deference to parental control over children is underscored by the Court’s admonitions that ‘[t]he child is not the mere creature of the State, ” Pierce, 268 U.S. at 535, and that it is the parents’ responsibility to inculcate “moral standards, religious beliefs, and elements of good citizenship.” Yoder, 406 U.S. at 233. Gruenke, 225 F.3d at 307. The Policy improperly elevates the role of public school officials above the role of parents. It boldly states that on the question of gender identity, the school is going to ignore the parental interest in exercising their primary rights in the upbringing of children. Instead, the Policy invites school officials to defer to desire of children on a matter of profound parental interest. And then, having done that, the Policy requires the school to lie to parents about what they have done. Nothing in the history or tradition of the country suggests

that schools have authority to overrule parents on questions as fundamental as identity, and this Court should confirm that fact. c. The Policy Is Not Necessary To Achieve A Compelling State Interest Jane Doe’s claim is notable for the government interests that it does not affect. First, it is not a case in which the plaintiff has asserted that her parental rights are “without limit” or absolute. Appx. at 6, 51. Contrary to the arguments made by the Board below, the plaintiff’s challenge to the Policy does not seek to affect the school’s maintenance of order or control over, or access to, the school’s physical plant as in Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir. 2001)(upholding mandatory school uniforms policy); or the school’s policies governing locker rooms and bathrooms, as in Parents for Privacy v. Barr, 949 F.3d 1210, 1231 (9th Cir. 2020)(rejecting challenge to policies concerning locker room and bathroom access). She has not based a claim based on an objection to the administration of surveys such as the ones in Fields, 427 F.3d 1197 (9th Cir. 2005)(finding no violation in the administration of survey covering sensitive topics). And she has not demanded an opportunity to opt-out of sex education, birth control distribution, or community service programs. See Leebaert, 332 F.3d 134 (mandatory health classes); Brown, 68 F.3d 525 (no violation for compelled attendance at arguably obscene health program); Parents United for Better Sch., Inc. v. Philadelphia Bd. of Educ., 148 F.3d 260 (3rd Cir. 1998)(birth control distribution). Further, the plaintiff has made no claim that one-on-one communications between students and trusted teachers or guidance counselors be disclosed to her or anyone else. Indeed, the plaintiff has not sought to exercise her constitutional right to parent her child in any way that affects any other student, or the school, at all, and nothing in her claim encompasses a “broad-based right to restrict the flow

of information in public schools.” Brown, 68 F.3d at 534; Fields, 427 F.3d at 1205. It is clear that the shockingly broad provisions of the Policy are not necessary to achieve a compelling government interest. The Policy simply defers to the judgment of children on matters intimately related to child rearing and over which parents have a profound interest during a child’s minority. While the Board clearly has a compelling interest in preventing bullying and creating a learning environment in which transgender students are able to learn, that interest does not extend to the purposeful interference in the family relationship between parent and child on deeply felt issues of identity. “Public schools must not forget that ‘in loco parentis’” does not mean ‘displace parents.’” Gruenke, 225 F.3d at 307. The Board asserts that its Policy is intended to prevent discrimination against transgender students as required by RSA 193:39, and to “protect the legal rights or safety of such students [with the goal to] ensure the safety, comfort, and healthy development of the transgender or gender nonconforming student while maximizing the student’s social integration and minimizing stigmatization of the student.” Appx. at 46. The challenged provisions of the Policy are not necessary to achieve a compelling government interest. Two features of the Policy stand out. First, the Policy states that provides that “school personnel should use the student’s legal name and the pronoun corresponding to the student’s gender assigned at birth unless the student…has specified otherwise.” Appx. at 39-40 (emphasis added). As alleged in the complaint and acknowledged in the trial court’s order, this provision “would allow school officials to affirmatively conceal her child’s gender identity preferences from her….” Appx. at 6. The Policy’s use of the word “should” establishes a presumption that absent consent from the child, the school will use the student’s legal name and the

pronoun corresponding to the student’s gender assigned at birth when communicating about the child with a parent, with the intention and effect of concealing the student’s in-school gender expression. The Board has not asserted any compelling reason to create this presumption. Indeed, the existence of such a presumption is inescapably contrary to the state and federal constitutional understanding that “fit parents are presumed to act in the best interest of their children.” Troxel, 530 U.S. at 68; R.A.; 153 N.H. at 96. Although not expressly stated, the Policy makes precisely the opposite presumption. To the extent that the Board takes the position that the Policy is necessary to achieve the compelling state purpose of protecting children from harm at the hands of their parents, such a justification would run directly counter to established precedent. “The statist notion that governmental power should supersede parental authority in all case because some parents abuse and neglect children is repugnant to American tradition.” R.A., 153 N.H. at 96 (quoting Parham v. J.R., 442 U.S. at 603). The Policy also fails because it provides absolutely no guidance whatsoever as to what circumstances would warrant a decision by a teacher or other staff member to overrule the wishes of the child and advise the parents of the child’s in-school gender identity. The Board defends this “flexibility” as a virtue of the Policy. In fact, it lacks the kind of definition necessary to ensure that a restriction to a fundamental right is not unduly restrictive of the parent’s rights. See, R.A., 153 at 95-96. Simply leaving it up to school personnel to decide when they think it is best to tell the parents is not a policy that can withstand strict scrutiny. A well-crafted provision consistent with existing case law would create a presumption of disclosure to parents, or at the very least require truthful responses to inquiries. It would allow for non-disclosure only on the existence og limited conditions, such as when there is a substantial and articulable basis to believe that

a parent was likely to physically abuse the child. But “there will normally be reason for the state to inject itself into the private realm of the family to further question the ability of a parent to make the best decisions concerning the rearing of that parent’s children.” R.A. 153 N.H. at 103 (quoting Troxel, 530 U.S. at 68-69)(emphasis added in R.A.). Second, the Policy also fails because it creates a privacy right for students to keep matters private not only from the school community, which is of course permissible as it has no constitutional interest but also from the student’s parents. Worse still, the Policy anticipates a situation in which the student’s open and public conduct in school expresses gender in a way that is contrary to the expectation and understanding of the child’s parents, yet the Policy still creates a presumption that school personnel will act to conceal these facts, known to the general school community, from the parents. The Board may have a legitimate interest in protecting a student’s privacy from in-school disclosure of transgender status to peers or unnecessary disclosure to school personnel. Likewise, although not at issue in this case, there may be an interest in protecting in-school counseling or conversations with teachers from parental disclosure. See Arnold, 880 F.2d at 314 (“[W]e are not…constitutionally mandating that counselors notify the parents of a minor who received counseling about pregnancy”). But there is no compelling government interest in a policy that creates a right for students to maintain a zone of secrecy around their in-school conduct that operates against the parents. A Policy in which fit parents, who have primary responsibility for child-rearing, and who are presumed to act in the best interest of their child, are the last to find out about a child’s in-school gender transition, absent unusual and circumscribed circumstances, must fail the compelling state interest test.

V. CONCLUSION For the foregoing reason, the appellant asks that this Honorable Court reverse the decision of the trial court. VI. REQUEST FOR ORAL ARGUMENT The Appellant requests 15 minutes of oral argument. VII. CERTIFICATIONS I, Richard J Lehmann, hereby certify that on January 9, 2023, copies of the foregoing and the Appendix to the Brief were forwarded to opposing counsel of record, by electronic service. I, Richard J. Lehmann, hereby certify that the appealed decision is in writing and is included in the Appendix to the Brief. I, Richard J. Lehmann, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains less that 9, 500 words. Counsel relied upon the word count feature of the software used to prepare this brief in gathering word count information. Respectfully Submitted Jane Doe By her attorneys, Lehmann Major List, PLLC /s/Richard J. Lehmann January 9, 2023 _____________________________ Richard J. Lehmann (Bar No. 9339) 6 Garvins Falls Road Concord, N.H. 03301 (603) 731-5435 rick@nhlawyer.com