Wisconsin school's gender change policy: State justices debate

The Wisconsin Supreme Court wrestled Tuesday with whether to block a Madison school district policy that prohibits staff from informing parents that their children have changed genders, with opponents arguing the policy amounts to a secret experiment on children and supporters countering that the guidance protects student privacy.

The school district adopted a policy in 2018 that allows students to change their gender identity at school. Teachers and other school staff are required to use names and pronouns of the students' choosing without parental notice or consent. School staff is also prohibited from disclosing information about students' gender identity to anyone, including their parents.

A group of parents represented by the conservative law firm Wisconsin Institute for Law and Liberty and the Arizona-based Alliance Defending Freedom filed a lawsuit in February 2020 alleging the policy violated parents' constitutional rights to direct their children's upbringing. They've asked the court to issue a temporary injunction blocking the policy's enforcement while lower courts weigh the case.

"What we're talking about here is a grand social experiment," WILL attorney Luke Berg told the justices during oral arguments Tuesday. "Never before on such a large scale have (schools) treated little girls as little boys. ... Parents have the right to decide if they want their children to be part of this experiment."

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Adam Prinson, an attorney representing gender equity associations at three Madison high schools, maintained that the policy doesn't prevent parents from talking with their children or seeking therapy for them.

"We're talking about respecting a child's privacy, not intervening in the home," he said.

Conservatives hold a 4-3 majority on the court, although conservative Justice Brian Hagedorn sometimes acts as a swing vote. Justice Rebecca Bradley signaled she supports the parents, saying the policy allows schools to "facilitate a gender transition and completely hide this from the parents."

The liberal-leaning justices tried to focus on technicalities in the case rather than larger ramifications for the policy. They questioned Berg's request to allow the parents to sue anonymously, noting that while judges can seal cases state law generally requires case files to be open to the public and include the parties' names and addresses.

Berg maintained that the parents need to maintain anonymity to protect themselves and their children from retaliation. The school district's attorney, Sarah Zylstra, complained to the justices that without the parents' names she can't mount a viable defense. She doesn't know whether the plaintiffs are Madison parents or if they might have conflicts of interest.

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Berg told the justices that the parents' names aren't relevant because the case is about constitutional rights, not damages. He pledged to tell Zylstra anything that she needs to know about the plaintiffs but he doesn't want their names released because they could face harassment.

Justice Rebecca Dallet was flabbergasted.

"(The schools' attorneys) have to accept your statement that they're parents?" Dallet said. "How is the other side supposed to (counter) if they don't even know who they are?"

Chief Justice Annette Ziegler, a member of the conservative majority, pointed out the court has handled multiple cases with plaintiffs using John Doe pseudonyms in the past. Bradley said the threat of retaliation is real, pointing to a firebomb attack on an anti-abortion organization's Madison office earlier this month after a draft U.S. Supreme Court opinion suggesting that the U.S. Supreme Court was on course to overturn Roe v. Wade was leaked.

It's unclear when the state Supreme Court might rule on the Madison policy. The justices often take months to render their opinions following oral arguments.