WASHINGTON – On Monday, the Supreme Court decided not to hear a case that could have facilitated parental challenges to school policies that support transgender and nonbinary students.

Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh, three of the court’s six conservative members, indicated they would have supported taking up the appeal.

Parents from Wisconsin contend that courts are dismissing their challenges to gender identity support policies before they can be fully reviewed, arguing that they cannot demonstrate actual harm.

The parents believe that these policies infringe upon their rights even if they haven’t been directly applied to a specific student, and they assert that they might not always be informed if a gender identity support plan is implemented for their child.

Justice Alito, in a statement expressing his desire to hear the case along with Justice Thomas, reflected the concerns of the parents. He suggested that lower courts could be reluctant to tackle “contentious constitutional questions” like this, which he views as “of great and growing national importance.”

The Eau Claire Area School District in Wisconsin, which is defending its guidelines meant to create a supportive environment for transgender students, countered that the parents are trying to set a precedent that would enable legal challenges to any school policy that they feel might affect them, even if it does not impact them directly.

Attorneys for the school district argued that the parents were seeking to establish a legal framework that would allow courts to provide advisory opinions on emotionally charged social issues.

Additional transgender-related cases awaiting the court’s attention

This case adds to the ongoing discussions about transgender issues before the Supreme Court, though it certainly won’t be the last.

Earlier this month, the justices considered the legality of state bans on providing puberty blockers and hormone therapy to transgender individuals under 18 years of age.

The court is also yet to decide whether it will take up appeals concerning lower court decisions that deemed states’ exclusion of gender-affirming care from health insurance plans for employees or low-income residents unconstitutional.

In addition, the court is reviewing Idaho’s and West Virginia’s efforts to prevent transgender athletes from competing in female sports.

Regarding school support for gender identity, the court previously declined to review a challenge to a policy implemented in Maryland’s largest school district in 2020. That case was dismissed by lower courts because the parents opposing the policy did not have children who identified as transgender, were struggling with gender identity, or were likely to question their biological sex.

The Wisconsin parents highlighted the need for the Supreme Court to clarify that such policies can be challenged before they are executed.

“This Court has the opportunity now to affirm that federal courts are equipped to uphold parental rights when these rights are significantly undermined – before children suffer as a result of such policies,” their legal representatives stated before the Supreme Court.

How lower courts have ruled

The Gender Support Plan developed by the Eau Claire Area School District in 2022 acknowledges that parents might not always be part of the planning process for their child. School staff must consult a student before revealing their gender identity to a parent. However, the support plan can be accessed by parents upon request.

A three-judge panel from the 7th U.S. Circuit Court of Appeals in Chicago ruled in May that none of the challenging parents had experienced any actual or potential harm.

Judge Michael Scudder, Jr., noted that the parents are attempting to involve the court in the “complex and often emotional challenges of gender identity, where the right approach is not yet defined and the best solutions will emerge through the evolving experiences of schools, students, and families.”

Further, Judge Scudder stated, “The court’s function is limited to waiting for concrete disputes between opposing parties.”