CONCORD, N.H. (Legal Newsline) - Childrearing is a fundamental right under the New Hampshire Constitution, but that doesn’t mean parents can make a constitutional case out of school regulations requiring teachers to hide a child’s gender identity from parents if the child so wishes, the state’s highest court ruled.
Article Two of the state constitution guarantees “certain natural, essential, and inherent rights,” and parenting and childrearing are among them, the New Hampshire Supreme Court ruled. But that right is limited to measures that severely interfere with childrearing, such as granting custody to another person.
The mere presence of a school regulation allowing children to select their own gender identity, without the knowledge of their parents, doesn’t rise to that same level, the court ruled in an Aug. 30 opinion by Chief Justice Gordon MacDonald.
The decision drew a dissent from Justice Melissa Countway, who said the policy “on its face, interferes with a parent’s fundamental right to parent.”
“Because accurate information in response to parents’ inquiries about a child’s expressed gender identity is imperative to the parents’ ability to assist and guide their child, I conclude that a school’s withholding of such information implicates the parents’ fundamental right to raise and care for the child,” the justice wrote.
The Manchester School District, like many, adopted a policy in 2021 prohibiting teachers and administrators from disclosing information about a student’s “transgender status or gender nonconforming presentation” to parents without the child’s consent.
A parent identified as Jane Doe then sued school district after she learned, “through an inadvertent disclosure by a teacher,” that her minor child had asked students and teachers use “a name typically associated with a different gender.” The child ultimately volunteered the same information to the parent, but the school principal asserted the policy did prohibit disclosure without the child’s consent.
A trial court dismissed the parent’s lawsuit, ruling the policy didn’t affect the parent’s fundamental rights. The plaintiff appealed, but the New Hampshire Supreme Court refused to reverse.
On appeal, the plaintiff argued any policy implicating parental rights should trigger strict scrutiny, under which the court asks whether the same governmental policy could be achieved in less restrictive ways. But the Supreme Court said the policy didn’t rise to that level of scrutiny.
“By its terms, the Policy does not directly implicate a parent’s ability to raise and care for his or her child,” the court ruled. “We cannot conclude that any interference with parental rights which may result from non-disclosure is of constitutional dimension.”
The plaintiff was represented by Lehmann Major List, while Manchester was represented by Drummond Woodsum & MacMahon. The case drew amicus briefs from the American Civil Liberties Union, the American medical Association, New Hampshire Pediatric Society, the New Hampshire Council of Churches and other groups.