RECENT LEGAL CHALLENGES INVOLVING A CHILD'S GENDER IDENTITY IN SCHOOL: AN EXPLORATION OF THE "FUNDAMENTAL" RIGHTS OF PARENTS.

For many years, parents have alleged, through litigation, a fundamental right to direct the education of their children.1 Much of the previous litigation in this area addresses instruction, the right to attend private schools, and various curricular concerns.2 Most recently, school districts across the country are attempting to balance the privacy rights of transgender3 and gender nonconforming students against parents' asserted right to know about their children's gender identities.4 In a few situations, parents have challenged school district policies that might not permit educators to inform parents about their child's use of preferred names and pronouns in class.5 Parents have argued that they have a fundamental right, rooted in the Fourteenth Amendment's Due Process Clause, to be informed on such matters.6 At the same time, school districts are trying to navigate these emerging issues. This article will examine some of the legal and policy considerations related to this topic. We begin with a discussion of how parents have relied on substantive due process when arguing that they have a fundamental right to direct the upbringing of their children. We also examine how that argument may have been impacted by the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.7 We then consider how both the Supreme Court and federal circuit courts have viewed parental claims involving a fundamental right to direct the upbringing of their children within the context of education. In doing so, we explore some of the recent legal challenges initiated by parents and how these relate to knowledge of their children's gender identities within the school context. Next, we analyze important policy considerations that might support states' interests in elevating the rights of the child over the rights of their parents in situations where the child's health or safety is threatened.8 Finally, we conclude with a discussion of the practical application of the topics addressed in this article as well as a summary of the potential impact of the Court's decision in Dobbs on the rights of parents in schools. [ABSTRACT FROM AUTHOR]