Parents in CO file suit over troubling “gender identity” law and school policy

In April 2024, Colorado officials adopted a law allowing students to change their chosen names without having to inform their parents, a school board policy.

Under this policy in Jefferson County (near Denver), parents were told that children on field trips would be “assigned to share overnight accommodations with other students that share the student’s gender identity” rather than rooming by sex. Although the policy reads that “girls will be roomed together on one floor, and boys will be roomed together on a different floor,” officials failed to notify parents they had “redefined the words ‘girl’ and ‘boy’ to mean a student’s asserted gender identity rather than sex, thereby making it difficult for them to decide whether to allow their youngsters to go on trips.

In Walies v. Jefferson County Public Schools, three sets of parents with children in fifth to seventh grades turned to the Alliance Defending Freedom, filing suit on September 4, 2024 in the federal trial court in Colorado.

Facts and Complaint

When parents allowed their children to participate in trips, educators assured them the youngsters would share rooms with members of their own sexes. In one incident, before an eleven-year-old, fifth-grade female went on a trip to Philadelphia and Washington, D.C., and was assigned to share a bed with a boy identifying as female , even though officials told her parents she would room with three other girls. When the student asked for a change, “the chaperones agreed to move the male student and another girl” but lied about doing so, saying a “sick roommate needed more space.”

In a second incident, parents of an eleven-year-old sixth-grader, who was on a camping trip, were told he would be in a cabin “with six to thirty other boys including a male high school counselor.” However, “once their son was in the mountains, away from home for the first time, and with no form of communication,” the parents “realized that this Policy allowed an eighteen-year-old female, who often changed her gender identity from female to nonbinary, to room with their eleven-year-old son.” The eleven-year-old told his parents this counselor “was not just sleeping and changing in the same cabin but was also tasked…to supervise the boys’ showers, including his.”

The parents filed suit after school officials refused to modify the policy, despite receiving letters from Alliance Defending Freedom in December 2023 and January 2024. Those letters asked officials to do so because they had been untruthful about trip accommodations and were unwilling to change housing arrangements to protect the children.

The first of four parental claims is grounded in the Fourteenth Amendment; the claim alleges officials violated their due process rights under 42 U.S.C. 1983, transgressing “‘perhaps the oldest of the fundamental liberty interests recognized’ by the Supreme Court” by interfering with their right to direct the upbringing of their children by not informing them honestly about the overnight accommodations their young would share while on trips so that they could safeguard their “bodily privacy, sexual modesty, and interactions with the opposite sex….”

The parents further objected to the policy because “they do not want their children’s bodies or intimate activities to be exposed, or risk being exposed, to members of the opposite sex,” “due to the discomfort, stress, and anxiety it has caused their children who were placed in intimate settings with students of the opposite sex” without their knowledge or consent.

In their second charge, the parents allege that officials ignored their First Amendment right to the free exercise of religion under Section 1983 “to raise their children in accordance with their religious beliefs and…to direct their children’s education and upbringing consistent with their religious beliefs, including the immutability of sex, their beliefs about bodily privacy, interactions with the opposite sex, and sexual modesty.”

The third complaint raises Fourteenth Amendment and Section 1983 concerns, claiming the policy ignored parents’ “fundamental right of bodily privacy [that] protects students from exposing, or the risk of exposing, their bodies or intimate activities to the opposite sex.”

In their final count, the parents rely on the First and Fourteenth Amendments plus Section 1983, charging that, among other actions, educators ignored their beliefs that their children “not undress, use the restroom, shower, complete other intimate activities, or share overnight accommodations with the opposite sex…[based on their] sincere religious belief[s] that God created all people in His image as male and female…[and that] a person’s sex is binary and fixed at conception.”

Ill-conceived and troubling policy

As much as one might want to support a policy welcoming all students, the one in Douglas County is problematic because it lacks balance in standing the almost century-old quote from 1925’s Pierce v. Society of Sisters of the Holy Name of Jesus and Mary on its ear by ignoring parental rights. In Pierce, although the Court famously declared that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” educators continue to ignore parental wishes.

The ill-conceived policy in Jefferson County is highly troublesome for three reasons.

First, officials continue to be untruthful to parents about accommodations for their children on trips. By failing to inform parents honestly, officials place them in the unenviable position of not knowing who their children may be housed with on trips.

Second, officials are unwilling to make alternative arrangements, such as opt-outs, to protect the privacy rights of children who are uncomfortable dressing in the presence of members of the opposite sex, including peers identifying as members of a sex inconsistent with their biological genders.

Third, educators ignore the religious freedom rights of both parents and students by refusing to accommodate their beliefs, prohibiting them from sharing intimate accommodations with members of the opposite sex, regardless of their ages, and how such exposure could be traumatizing.

What is confounding about the policy is its imposition of ideologically based “social experiments on other people’s children.” These “educators” seem unconcerned about the trauma they may inflict on so many vulnerable young students when they could easily accommodate the religious-privacy beliefs of these children while safeguarding the parents’ rights to raise their youngsters in accord with their values.

One hopes the federal trial court in Colorado will send a wake-up call to school officials in Douglas County, and elsewhere, directing them to look at the big picture by protecting the religious and privacy rights of all. Educators must thus be mindful of the needs of impressionable middle school, and other, students who may be understandably uncomfortable dressing in front of peers based on their gender identities rather than biological sexes by allowing them to opt out of such arrangements while simultaneously upholding the rights of parents to direct the upbringing of their children.