Public education is compulsory, and schools are required to provide students with a free and appropriate public education. But what’s taught is a matter of what the local school board decides. Montgomery County, Maryland, has made its decision, and if you want their FAPE, then your children are going to be taught about gender orientation and identity.

In this lawsuit, parents whose elementary-aged children attend Montgomery County Public Schools (“MCPS”) seek the ability to opt their children out of reading and discussion of books with lesbian, gay, bisexual, transgender, and queer characters because the books’ messages contradict their sincerely held religious beliefs about marriage, human sexuality, and gender. Last school year, MCPS incorporated into its English language arts curriculum a collection of storybooks featuring LGBTQ characters (the “storybooks” or “books”) in an effort to reflect the diversity of the school community.

The putative purpose of the curriculum is to teach students about gender diversity, civility and to respect others, which certainly seems to be an admirable and uncontroversial lesson. But how they do so raises other issues.

The School Board believes that diversity in its community is an asset that makes it stronger and that building relationships with its diverse community requires it to understand the perspectives and experiences of others. These values are memorialized in the School Board’s Policy on Nondiscrimination, Equity, and Cultural Proficiency, which supports “proactive steps to identify and redress implicit biases and structural and institutional barriers that too often have resulted in” disproportionate exclusion and underrepresentation. Accordingly, the School Board strives to “provide a culturally responsive . . . curriculum that promotes equity, respect, and civility” and prepares students to “[c]onfront and eliminate stereotypes related to individuals’ actual or perceived characteristics,” including gender identity and sexual orientation.

In the past, parents were notified in advance of lessons involving these issues and given the opportunity to opt out. The school board decided that would no longer be the case, and neither advance warning nor an option to opt out was permitted.

Initially, parents could opt their children out of reading and instruction involving the books, as they could with other parts of the curriculum. In March of this year, the defendants—the Montgomery County Board of Education, the MCPS superintendent, and the elected board members (collectively, the “School Board”)—announced that parents no longer would receive advance notice of when the storybooks would be read or be able opt their children out.

What were these books that gave rise to three couples suing the district under the argument that they had a constitutional right under the Free Exercise Clause not to have their children indoctrinated into a gender ideology in conflict with their sincerely held religious beliefs?

In the spring of 2022, the School Board had determined that the books in its English language arts curriculum were not sufficiently representative because they did not include LGBTQ characters. It initiated procedures to evaluate potential new instructional materials that would be more inclusive. A committee of four reading specialists and two instructional specialists engaged in two rounds of evaluation and eventually recommended the approval of the storybooks, finding they “supported MCPS content standards and performance indicators, contained narratives and illustrations that would be accessible and engaging to students, and featured characters of diverse backgrounds whose stories and families students could relate to.”

The plaintiffs have attached seven of the storybooks to their complaint. Pride Puppy! chronicles a family’s visit to a “Pride Day” parade and their search for a runaway puppy, using the letters of the alphabet to illustrate what a child might see at a pride parade. Uncle Bobby’s Wedding tells the story of a girl who is worried that her soon-to-be-married uncle will not spend time with her anymore, but her uncle’s boyfriend befriends her and wins her trust. Intersection Allies: We Make Room for All features nine characters who proudly describe themselves and their diverse backgrounds and connects each character’s story to the collective struggle for justice. My Rainbow tells the story of a mother who creates a rainbow-colored wig for her transgender child. Prince & Knight tells the story of a young prince who falls in love with and marries a male knight after they work together to battle a dragon. Love, Violet chronicles a shy child’s efforts to connect with her same sex crush on a wintry Valentine’s Day. Born Ready: The True Story of a Boy Named Penelope is about an elementary-aged child who experiences triumphs and frustrations in convincing others what the child knows to be true—that he’s a boy, not a girl. Pride Puppy! is for pre-kindergarten and the Head Start program; the other books are for kindergarten through fifth grade.

While the complaint includes certain idiosyncratic grievances about the way in which one teacher executed the curriculum, the larger issue relates to whether a board of education, a school, a teacher, should have the authority to teach a value system, an ideology that includes the normalization of controversial gender “truths,” to elementary (and younger) students.

District Judge Deborah L. Boardman finds that the refusal to permit parents to opt their children out neither violates their religious freedom nor constitutes indoctrination, even though she also holds that there is no caselaw holding that indoctrination burdens free exercise. As the school board determined that this is what should be taught in its classrooms, the burden is on the plaintiffs to show that it violates their constitutional rights to terminate their ability to opt their children out of gender orientation and identity education.

For those of us who mostly* take no issue with exposing children to books that include gay or transgender characters and situations, this outcomes mostly creates no battle worth fighting. However, the court’s cavalier dismissiveness of parents’ right to instill religious and social values in their children is disturbing, making the authority of schools to instill, if not indoctrinate, their chosen values in students superior to the right of parents to raise their children as they see fit.

*Among the issues raised was a teacher who told students not to tell their parents what they were doing in the classroom, which was apparently acceptable to the school board.