Opinion: What the Constitution doesn’t say

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler — arguably the best-known journalist in Wichita, Kansas’ largest city — picked a fight with Kansas Attorney General Kris Kobach — arguably the best-known politician in the whole state — over essentially this issue, and Kobach picked back. Let’s focus on the heart of their argument and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies that allegedly require teachers of students who identify as trans or nonbinary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents’ right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights.

When the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: While a bill was proposed in the Kansas Legislature last year that would have extended parental rights in this exact context, it died in committee, and so these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: What is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century establish that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns and privacy. Moreover, other cases insist that parents have to demonstrate a harm that “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies that had been legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point: a 2022 federal District Court decision that forbade Geary County’s school district from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’ Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

In short, what is being fought about is unsettled law. I think there’s a good chance the Supreme Court will end up agreeing with Kobach’s particular application of these constitutional precedents — but for now, his letter reflects cultural assumptions rather than controlling principles. Round one, therefore, goes to Lefler.

— Russell Arben Fox teaches politics in Wichita.


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