NH Supreme Court upholds transgender students’ rights in Manchester School District case

CONCORD, NH – The New Hampshire Supreme Court upheld the Manchester School District’s policy concerning transgender students, which includes referring to them by their requested names and pronouns and maintaining student privacy when appropriate.

The Manchester School District issued the following statement in response to Friday’s ruling in the case of Jane Doe v. Manchester School District:

“The superintendent and district leadership are pleased with the Supreme Court’s decision. As a district, we are responsible for providing a quality education in an environment that is safe and welcoming to all students. We remain committed to communication and transparency with parents to the fullest extent of the law.”

The court, in its decision, said the “plaintiff has failed to demonstrate that the policy infringes a fundamental parenting right.”

GLBTQ Legal Advocates & Defenders (GLAD) and the ACLU of New Hampshire represented New Hampshire filed a friend-of-the-court brief on behalf of parent Heather Romeri and her son Nico.

“Schools must provide a welcoming and supportive environment for all students. Today’s decision upholds that core value and allows schools to manage the educational environment so that all students have an equal and safe opportunity to learn,” said Chris Erchull, Senior Staff Attorney at GLBTQ Legal Advocates & Defenders.

“We are pleased with the court’s decision to affirm what we already know, that students deserve to be treated with dignity and respect and have a right to freely express who they are without the fear of being forcibly outed.” said Henry Klementowicz, Deputy Legal Director at the ACLU of New Hampshire. “Removing the Manchester School District’s existing, affirming policy would have created an environment where LGBTQ+ students don’t feel safe being who they are—and in school, they should feel safe, cared for, and able to learn to the best of their ability.”

Manchester Ink Link reached out to Attorney Richard J. Lehmann of Concord, who represented Jane Doe, but has yet to receive a response.

Deputy Majority Leader Jim Kofalt (R-Wilton), in a prepared statement, said the Supeme Court “decided against every single parent in our state.  By dismissing a case in which a student was ‘transitioned’ in the Manchester public school system without her parent’s knowledge or consent, the courts have sent a clear message that public school officials can keep secrets from parents.  This is just wrong.  This decision underscores our need to expand Education Freedom Accounts, pass a Parental Bill of Rights, and put control back in the hands of parents, where it belongs. If New Hampshire Republicans win a solid majority in November, expect that to happen in 2025.”

The court, in its decision, said it had long recognized the right to raise and care for one’s children as a fundamental liberty interest protected by Part I, Article 2 of the State Constitution.

“The justices also said the policy does not “directly implicate a parent’s ability to raise and care for his or her child. It encourages school personnel to not disclose information that may reveal a student’s transgender status, but contrary to the principal’s assertion to the plaintiff, the Policy does not require non-disclosure. Thus, even under the policy, school personnel may disclose the information. Further, the policy does not restrict a parent’s ability to learn information from other sources, including from the child. The policy does not encourage students to hide information from their parents or prevent students from sharing information. The policy does permit non-disclosure in response to a parent’s question seeking that information. However, as the trial court observed: [T]he policy does not prevent parents from observing their children’s behavior, moods, and activities; talking to their children; providing 7 religious or other education to their children; choosing where their children live and go to school; obtaining medical care and counseling for their children; monitoring their children’s communications on social media; choosing with whom their children may socialize; and deciding what their children may do in their free time. In short, the Policy places no limits on the plaintiff’s ability to parent her child as she sees fit. We cannot conclude that any interference with parental rights which may result from non-disclosure is of constitutional dimension.”

Heather Romeri, Nico’s mother, said at the time GLAD filed its brief that she was grateful her son had the support he needed in school.

“Of course, I want my child to feel he can talk to me about anything, but above all I want him to feel safe and happy. I understand that he needed to be able to talk about what he was going through with others before he came to me, and I’m so glad he had that chance, just as I am glad that he had the chance to see how much his family loves and supports him once he was ready to come to us.”

Nico, a NH transgender high school student, said it was important to him to have the support of people he could trust to help him feel ready to speak to his parents.

“Transgender students want the same opportunity to learn and be ourselves, just like any kid, without having to worry that adults at school will violate our trust. If someone had decided to tell my mom what they thought about my gender, it would have made things so much harder for me at school and at home,” he said.

The district adopted a policy titled “Transgender and Gender NonConforming Students” on Feb. 8, 2021.  About a year later, it amended the policy to say the Board of School Committee…:

“recognizes a student’s right to keep private one’s transgender status or gender nonconforming 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 nonconforming presentation to others including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure. Transgender and gender nonconforming 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 3 transgender or gender nonconforming 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.”

The plaintiff said she discovered, through an inadvertent disclosure by a teacher, that her child, identified only as M.C., had asked teachers and students to call M.C. by a name associated with a different gender than assigned to M.C. at birth.

The parent informed M.C.’s guidance counselors and others at the school that “she would like the school to continue to treat M.C. according to M.C.’s birth gender, to address M.C. by . . . M.C.’s given name . . . , and to address M.C. using the pronouns that correspond to M.C.’s biological sex.”

Initially, some of M.C.’s teachers indicated that they would respect her wishes. Soon thereafter, however, the principal emailed the parent and explained that while the principal respected and understood her “concern, we are held by the district policy as a staff.” The principal explained that, under the policy, staff was required to call M.C. by M.C.’s desired name and could not “disclose a student’s choice to parents if asked not to.”

After receiving the principal’s email, the parent “discussed issues related to gender expression, birth-name usage, and pronouns with M.C.” She subsequently learned, through representations by both M.C. and school personnel, that M.C. asked school personnel to use M.C.’s birth name and pronouns and that school personnel were doing so.

Nevertheless, the parent alleged that “the continued existence of the policy means that [she] cannot know whether representations by district personnel are factually true, or whether the district personnel are simply following the policy by misleading and/or lying to [her] about M.C.’s in-school gender expression and the district’s response thereto.”

In May 2022, the parent filed the lawsuit in Hillsborough County Superior Court North.  The school district filed a motion to dismiss which was granted, saying the policy was not unconstitutional and did not violate her constitutional parenting rights.

The decision was not unanimous.  Justice Hicks, who retired last year, was present for the oral arguments but did not participate in the final vote.

Justice Melissa Countway dissented saying she believed the policy, on its face, “interferes with a parent’s fundamental right to parent.  I believe that this case—which involves whether a public school may conceal from a child’s parent the child’s decision to identify as a gender other than that assigned at birth—implicates such a right.”

Following Friday’s decision Senate President Jeb Bradley, R-Wolfeboro, weighed in on his opinion of the New Hampshire Supreme Court’s Decision with the following statement:

“The Supreme Court’s decision underscores the importance of electing people who will support the rights of parents against a public school establishment that thinks it knows more about raising each individual child than parents do.”