A Newcastle woman who discovered that public school officials were facilitating the social transition of her 13-year-old daughter behind her back was in federal district court Wednesday for the first hearing in her lawsuit against the school district.
In December, Amber Lavigne — the mother of a student at Great Salt Bay Community School (GSBCS) — discovered that a 26-year-old social worker by the name of Samuel Roy had given her 13-year-old daughter two breast binders — garments designed to conceal the appearance of a female’s breasts — and instructed her on their use.
While chest binders are not classified as medical devices, there are a number of potential side effects and risks associated with their use.
Lavigne also contends that she was not told when Roy and other school officials began to use an alternative name and pronoun set for her daughter, a fact that has since been denied by GSBCS officials.
Back in April, Lavigne filed a lawsuit against the GSBCS Board and Central Lincoln County School officials alleging that her constitutionally protected parental rights had been violated.
Over the summer, officials moved to have the case dismissed on the grounds that the woman “failed to state a claim.”
This Wednesday, the sides presented their arguments concerning this motion to Judge Jon D. Levy of the United States District Court for the District of Maine.
The lawsuit follows a series of stories, originally reported by the Maine Wire, regarding Lavigne’s allegation that 26-year-old GSBCS social worker Samuel Roy secretly provided her daughter with breast binders and encouraged her to adopt male pronouns.
Amber Lavigne’s Lawsuit Against the GSBCS
The original lawsuit — filed on Lavigne’s behalf by the Goldwater Institute — accused school officials of giving her thirteen-year-old daughter a breast binder, as well as referring to her by an alternate name and male pronouns before proceeding to inform the child that this was going to be withheld from her mother and that she was under no obligation to share this information with her.
Lavigne’s attorneys argue in the filing that “the U.S. Supreme Court has consistently held over the past century that one of the rights protected by the Fourteenth Amendment is the right of parents to control and direct the care, custody, education, upbringing, and healthcare decisions, etc., of their children—a right the Court has characterized as fundamental.”
“Pursuant to its official policy, pattern, and practice Defendants intentionally concealed this information — information that any conscientious parent would rightly want to know about her child — from her, thereby purposely depriving her of the capacity to meaningfully make decisions regarding the care and upbringing of [her daughter],” the lawsuit says.
“This policy, pattern, and practice also deprived Plaintiff of the capacity to exercise meaningful choice respecting [her daughter]’s education, because such concealment deprived Plaintiff of information necessary to make an informed decision respecting which school is best suited to her family’s needs,” the complaint continues.
Two social workers — Roy and Jessica Berk — the GSBCS Principal Kim Schaff, the Central Lincoln County School System Superintendent Lynsey Johnston, and the GSBCS Board Members were all named by Lavigne in her lawsuit.
Through her lawsuit, Lavigne is seeking a judicial declaration that the GSBCS’s Transgender Student Guidelines are unconstitutional “insofar as they provide for the concealment of, or do not mandate informing parents of, a decision to provide ‘gender-affirming’ care to a student.”
According to Lavigne, she discovered a chest binder in her daughter’s room at the beginning of last December. Her daughter explained that Roy had been the one to give it to her and instruct her on how to use it.
Lavigne contends that the fact she was not informed by the school of this counseling was a reflection of a “blanket policy, pattern, and practice of intentional withholding and concealment of such information from all parents.”
Based on this information, Lavigne accused Roy of encouraging her daughter to keep secrets. Lavigne alleged Roy told her daughter that he would not be sharing the fact she had received a chest binder with her parents and informed her that she need not tell them either.
Similarly, Lavigne also discovered that school officials had been referring to her daughter using a name and pronoun series other than that which she had been assigned at birth and “not typically associated with A.B.’s biological sex.”
She accused Roy and Berk of deciding, at her daughter’s request, to use these alternate identifiers when speaking to or about her. Other school officials, including some teachers, then followed suit.
Lavigne contends this was concealed from her as well, but the defendants have denied that allegation, suggesting that there were communications between Lavigne and the school informing her that this was going on.
Throughout the country, many school districts have moved to adopt policies that allow school officials to aid students in concealing social transitions — including the use of alternative names and pronouns — from their parents, arguing that sometimes a child’s safety depends on this secrecy.
In this case, however, Lavigne argued that she had never given any of the defendants reason to believe that her daughter would be harmed in any way by her parents’ knowledge that this was happening, nor would there be any reason for them to hold such a belief.
“Consequently there is no rational basis for the Defendants’ withholding and concealing such information,” the lawsuit argues.
After discovering that all this had been going on behind her back, Lavigne met with school officials almost immediately on December 5.
Lavigne then says that she followed up again with school officials on December 7, although the defendants appear to deny in their response that this subsequent meeting ever occurred.
On December 12, Lavigne was visited by the Maine Office of Child and Family Services (Maine OCFS) due to “an anonymous report that Plaintiff was emotionally abusive towards” her daughter.
By January 13 of this year, however, the Maine OCFS reported that “the investigation did not support a finding of neglect or abuse.”
As a result of the events that transpired, Lavigne has since sought alternative educational arrangements for her daughter.
Lavigne contends in the lawsuit that the actions of school officials were the result of the district’s Transgender Student Guidelines adopted in early 2019.
“Neither the Transgender Policy nor the Conduct Policy nor any other legal authority
justify the withholding of vital information about a minor child’s psychosexual development, including their asserted gender identity, from the child’s parents, absent some evidence of actual and substantial risk to the child,” the lawsuit says. “On the other hand, if they do, they are unconstitutional.”
When making the case for declaratory relief, Lavigne argues that “the Great Salt Bay Community School Transgender Student Guidance violates her parental rights by withholding and concealing information.”
Although the written policy does not specifically direct officials to hide information from parents, Lavigne’s legal team argues that it does not provide sufficient guarantees that parents’ rights will be respected and maintained.
Lavigne further argues that unless injunctive relief is also provided, the school will continue to implement the policies and practices which she alleges are unconstitutional, thus causing Lavigne “irreparable injury, including but not limited to, the cost and burden of homeschooling her children.”
The lawsuit includes four counts against the named defendants, including —
- Three substantive due process violations under the Fourteenth Amendment for: (1) the secret provision of the chest binders to Lavigne’s daughter, (2) allegedly concealing her daughter’s social transition from her, and (3) adopting the Transgender Student Guidelines
- One procedural due process violation under the Fourteenth Amendment for: (1) not providing a clear-cut process for parental involvement with a child’s potential social transition at the school
In their response, the GSBCS deny two primary aspects of Lavigne’s complaint — (1) that they concealed her daughter’s social transition and (2) that the school has an unwritten policy of hiding information concerning students’ social transitions from their parents.
The GSBCS’s legal team argues that the social transition of Lavigne’s daughter was not concealed from her, and “affirmatively state[s] that the school had been in discussion with [Lavigne] about these matters for some time.”
Whether or not Lavigne was informed by the school that officials were using a masculine name and male pronouns for her daughter is a major factual discrepancy between the two sides of this case, but no evidence has thus far been presented to legally indicate which story is true.
Secondly, the GSBCS denies several times in their response the existence of “a blanket policy, pattern and practice of intentional withholding and concealment of any information from parents.”
GSBCS “states affirmatively” in their response “that it is the policy, pattern and practice of the [GSBCS] to work in partnership with parents regarding matters that affect their children.”
It is also worth noting that in their response, the GSBCS denies that “a properly fitted chest binder poses potential health risks” to the wearer.
The GSBCS does, however, admit to the fact that Roy provided Lavigne’s daughter with two chest binders and instructed her on their use.
GSBCS’s Motion to Dismiss
The defendants moved to have Lavigne’s lawsuit dismissed on the grounds that she fails to “state a claim.”
Firstly, they contend that the Transgender Student Guidelines to which Lavigne refers do not advocate for parental exclusion, but rather for parental involvement “every step of the way.”
Secondly, the defendants argue that the constitutional interpretation set forth by Lavigne’s legal team at the Goldwater Institute is faulty with regard to a parent’s right to be informed of their child’s psycho-sexual development.
“The very premise of Plaintiff’s claims — that the Constitution requires a school to keep parents up to speed on how their children are navigating their sexual identity at school — is not accurate,” the motion says.
The defendants also requested that Lavigne’s claims against particular individuals “in their official capacity” be dismissed on account of the fact that they are “redundant” given that she is already suing the district institutionally.
The defendants go on to argue that Lavigne does not have a tenable case against the district as an institution because “at best, what Plaintiff has pled here is that certain employees of the School violated its policies.”
“Those allegations — even if true — are simply insufficient to give rise to liability,” the motions says, and “should therefore be dismissed.”
“The school’s competing and justifiable government interests establish unequivocally that the School’s implementation of the Guidelines and the employees’ alleged decision not to disclose private information to Plaintiff are not conscious-shocking,” the motion argues.
Because the district is obligated to comply with both state and federal anti-discrimination laws, as well as to “respect students’ rights,” the defendants argue that the conduct alleged by Lavigne would not be unconstitutional.
“The Guidelines direct school staff to ‘follow the student’s plan’ regarding disclosures that the student is transgender and do not compel students to withhold information from their parents,” the motion says.
“There are no allegations that the student was compelled to identify by certain pronouns, nor are there any allegations that the student was obliged to use a chest binder,” the motion continues.” Because Plaintiff fails to allege any conduct that meets the requisite constitutional level of culpability, none of her substantive due process claims are cognizable.”
The defendants also argue that Lavigne does not “have a fundamental right to direct how a school fulfills its state law obligation to create a safe learning environment for all students.”
“Although [Lavigne], like all parents, has a fundamental right to make decisions concerning the care custody, and control of her child, that right is ‘not absolute,'” the motion says.
The defendants also argue that the “countervailing rights of students” serve to constrain the rights of parents, including Lavigne.
“The unintended consequences of the constitutional duty that [Lavigne] seeks to impose on schools are rife, and those consequences pose a threat to ‘a school board’s most basic obligation . . . to create a stable environment for the education of its students,'” the motion states.
“The rights of other parents and students particularly weigh against [Lavigne]’s asserted right where, as here, nothing stops [Lavigne] from the care and control of her child, including [her] ability to gain from her child the information that she seeks to know from the school,” the defendants argue in the motion.
According to the defendants, the school’s Transgender Student Guidelines strike an appropriate balance between the needs of students and parents.
“The Guidelines serve the weighty interest of the School in providing a safe educational environment, and they balance the private interests of all parents and students, including by involving parents and assessing the needs of each particular student on a case-by-case basis to minimize any possible deprivation of those private interests,” the motion says.
The defendants are seeking to have all four counts filed by Lavigne dismissed.
Wednesday’s Oral Arguments
Wednesday afternoon, both sides came before Judge Levy to make their case concerning this dismissal.
The hearing focused primarily on three aspects of the motion to dismiss: (1) the claims being leveled against individual school officials, (2) the alleged presence of an unwritten “withholding policy” at GSBCS, and (3) the potential necessity of a stay pending the court’s decision in another case.
Dismissal of Individuals From Lawsuit
With regard to the claims being brought against the individual school officials, Judge Levy inquired as to whether Lavigne would be put at any “specific disadvantage” should the individuals be dismissed from the case.
In response, Lavigne’s legal team stated that she would not, but they nonetheless argued that having the individuals named in the suit would be beneficial as it would make it easier to have them deposed.
Judge Levy agreed, however, with the assertion that the individuals in question would be equally accessible for deposition regardless of whether or not they were actually named in the lawsuit.
At the close of the hearing, Judge Levy did move to dismiss the school officials from the lawsuit, leaving intact only the complaints as issued against the school district as an institution.
Alleged Unwritten Withholding Policy of the GSBCS
Discussions surrounding the alleged presence of an unwritten “withholding policy” at the GSBCS took up the majority of Wednesday’s hearing.
While Lavigne’s team argued that the GSBCS “ratified” the actions of school officials such that concealment of her daughter’s social transition amounted to a “de facto” school policy, the defendants asserted that this was not the case.
Originating from a 1978 Supreme Court case known as Monell v. Department of Social Services, a substantial portion of Lavigne’s case is built on the principal that the GSBCS’s “policy or custom” was to conceal information regarding a student’s social transition, despite the presence of a written policy suggesting the opposite.
Known as the Monell doctrine, this standard is typically discussed in the context of police misconduct, although it can apply in the case of any alleged instance of municipal liability.
The Monell doctrine essentially allows those who have been subjected to misconduct at the hands of a municipal employee a means by which to seek relief in a civil lawsuit.
Under this doctrine, a municipality can be held accountable for an employee’s actions if it is established that (1) the employee violated an individual’s constitutional rights and that (2) the violation resulted from an official policy, an unwritten custom, or deliberate indifference with respect to proper training.
Representing the defendants, attorney Melissa A. Hewey of Drummond Woodsum argued Wednesday that Lavigne did not present any “specific facts” showing that the GSBCS had any de facto policy or unwritten custom of withholding information from parents, asserted that she needed to present more proof than her own singular experience.
Furthermore, Hewey reasserted the defendants’ claim that school officials did not conceal the social transition of Lavigne’s daughter from her — a statement that stands as a firm point of contention between the two parties in this suit.
Judge Levy then pushed Lavigne’s legal team to point to specific evidence suggesting that an unwritten custom or policy of withholding such information from parents exists at the GSBCS.
“I’m going to press you on this,” he told Lavigne’s attorneys.
In response, Lavigne’s attorney Adam Shelton pointed to the fact that the school district publicly stated — after Lavigne had made her complaint known to school officials — that they were not aware of any violations of school policy.
Because this statement did not specifically refer to the Transgender Student Guidelines — and officials had already been made aware of Lavigne’s concerns that she was not informed about her daughter — Shelton argued that this shows the GSBCS did in fact have a “policy or custom” of concealment.
According to Shelton, if the GSBCS was not aware of any policy violations, but they were aware of Lavigne’s allegations, then they must be understood to have an unwritten policy directing officials to withhold information about a student’s social transition from parents.
Due to the nuanced nature of the Monell doctrine’s specific requirements, Judge Levy decided to give each side a week to present their ten best citations for their interpretation of the standard, particularly when it comes to the nature of the “specific facts” it demands as proof that an unwritten custom or policy exists.
Potential Stay Pending A Decision in Foote
Lastly, Levy asked the parties whether a decision in this case ought to be stayed pending a decision in Foote v. Town of Ludlow — a case currently making its way through the legal system that presents a similar set of facts to Lavigne’s.
Foote is currently being appealed to the First Circuit Court of Appeals, and Judge Levy’s inquiry stems from the possibility that a decision in that case may lend critical insight from a higher legal authority as to how Lavigne’s lawsuit ought to be decided.
Neither side argued definitely in favor of a stay.
The GSBCS suggested that Foote is fundamentally different because the school district in question for that case stipulated the existance of an unwritten concealment policy. Hewey did, however, say that if this case comes down to a decision on the constitutionality of a concealment policy, a stay may be warranted.
Shelton also argued against a stay, suggesting not only that Foote presents some key factual and circumstantial differences, but also that the delay resulting from a stay would present problems.
Closing Comments to the Judge
At the close of Wednesday’s hearing, Judge Levy allowed both parties to bring up any additional points they wanted to present.
Hewey used this opportunity to say that Lavigne’s case is founded upon the assertion that the GSBCS had a secret unwritten concealment policy that “trumped” the written Transgender Student Policy — a statement that Hewey contends has not been sufficiently proven to meet the standards set forth by Monell.
Shelton took this as a chance to present three distinct arguments to the judge.
First, Shelton stated that the unwritten policy that is alleged to exist at the GSBCS would not operate as a replacement for the Transgender Student Policy, but rather as a “supplement.”
The official policy allows for “other resources” to be used by personnel “as appropriate” when deciding how to handle matters when a student expresses a desire to socially transition from one gender to another.
According to Shelton, this hints that there are other, unofficial guidance to which they may refer when deciding whether to inform parents about their child’s psycho-sexual development — in this case, the alleged informal withholding policy.
Secondly, Shelton reiterated what he had said previously concerning the timing of the GSBCS’s public statement that they were unaware of any policy violations.
Lastly, Shelton pointed toward the defendants’ own words in their motion to dismiss as further proof that parental rights were not properly protected at the GSBCS.
In their motion to dismiss, it was stated the school’s policy was to defer to students when determining the level of parental involvement in a social transition, as mandating parental involvement would violate the due process rights of children.
Where The Case Stands Now
Although Levy ultimately ruled to dismiss the named individuals from the lawsuit, he has not yet made a decision on the remaining aspects of the GSBCS’s motion to dismiss the claims made against them institutionally.
That ruling is not expected until after he has had a chance to review all of the citations concerning the Monell doctrine’s requirements submitted by both parties.
“From the District’s perspective, two important things happened today,” Hewey told the Maine Wire.
“First, the individual defendants were dismissed which is important because, as the Judge recognized, there is no reason for them to be in this case,” Hewey said.
“Second, it was clear that the judge agrees with our contention that the Board’s policy requires rather than discourages parental involvement in matters such as this,” she said. “Contrary to the Plaintiff’s contention, there is no secret ‘Withholding Policy’ in Great Salt Bay.”
“Rather, the District is committed to working collaboratively with students and their parents/guardians to navigate these difficult issues,” Hewey said.
“We think the complaint should be dismissed based on the legal issues discussed at today’s hearing but we appreciate that motions of this type are rarely granted in full and we are prepared to prove that is the case if necessary,” Hewey concluded.
Lavigne’s attorney, Adam Shelton of the Goldwater Institute, declined to comment for this story.