Transgender Teen’s Mother Asks Supreme Court to Recognize a Parent’s Due Process Rights to Control Her Child’s Life
By Arthur S. Leonard. This article will appear in the August edition of LGBT Bar NY’s LGBT Law Notes, the most comprehensive monthly publication of LGBT legal Developments here and abroad. Subscribe:
Anmarie Calgaro is one angry mama. Despite being defeated at every turn in the lower courts, and despite her child having reached age 18 and thus no longer being subject to her parental control as a matter of law, she is asking the U.S. Supreme Court to reverse decisions by the U.S. 8th Circuit Court of Appeals and the U.S. District Court for Minnesota, and to establish that governmental and private entities should not be allowed to shut out a parent from continuing to control her transgender teen, even after the teen has left home and is living on her own. The decisions in the lower courts are Calgaro v. St. Louis County, 2017 WL 2269500 (D. Minn. 2017), affirmed, 919 F. 3d 1054 (8th Cir. 2019), petition for certiorari filed, July 26, 2019, №19–127. The Respondents have a filing deadline of August 26.
Calgaro is suing St. Louis County, Minnesota; St. Louis County Public Health and Human Service’s former director, Linnea Mirsch; Fairview Health Services and Park Nicollet Health Services, non-governmental health care providers; St. Louis County School District; Principal Michael Johnson of the Cherry School in that district; and, not least, her child, identified in court papers as E.J.K.
The Petition filed with the Supreme Court in Calgaro v. St. Louis County, №19–127 (docketed July 26, 2019), presents a factual narrative that differs a bit from that provided by the lower court opinions. The Petition refers to E.J.K. by male pronouns, despite E.J.K.’s female gender identity, and tells the story from the perspective of a mother confronting misbehaving adults who were wrongfully treating her child, male from her perspective, as if he was emancipated and could make decisions on his own without notice to or approval by his mother. She was particularly concerned that these adults (governmental and non-governmental) were assisting her child in gender transition without giving her an opportunity to object.
The gist of the story is that the teen, identified as male at birth but who came to identify as female, was living with her mother and younger siblings, but decided at age 15 to move out to live with her biological father for reasons not articulated by the courts or the Petition, but one can imagine them. (From the court’s reference to “biological father,” one hypothesizes that E.J.K.’s biological parents were not married to each other.) She stayed with her father only briefly, then staying with various family and friends, refusing to move back in with Calgaro, who claims that she has always been willing to provide a home for E.J.K.
After leaving her mother’s home, E.J.K. consulted a lawyer at Mid-Minnesota Legal Aid. The lawyer “provided her with a letter that concluded she was legally emancipated under Minnesota law,” wrote District Judge Paul A. Magnuson. E.J.K. never sought or obtained a court order declaring her to be emancipated. But this letter, which by itself has no legal effect, was used effectively by E.J.K. to get government financial assistance payments that ordinarily would not be available to a minor who is not emancipated, to persuade two health care institutions to provide her with treatment in support of her gender transition, and to persuade her high school principal to recognize her gender identity and to treat her as emancipated and to refuse to deal with her mother’s requests for information and input about E.J.K.’s educational decisions. All of these steps were achieved by E.J.K. without notice to Anmarie Calgaro, who claims to have been rebuffed at every turn in her attempt to find out what was going on with the child to whom she referred as her “son.”
The essence of Calgaro’s claim is that in the absence of a court order declaring that E.J.K. was emancipated from her parents, none of these things should have happened. Relying on cases finding that parents have Due Process rights under the 14th Amendment concerning the custody, control and raising of their minor children, she claims that each of the defendants violated her constitutional rights by failing to give notice to her of what was happening, failing to afford her some kind of hearing in which she could state her position, and shutting her out from information about her child.
She had specifically requested from Cherry School Principal Johnson to have access to E.J.K.’s educational records, but was turned down. She asked the government agency and the health care institutions for access to E.J.K’s records concerning her health care and her government assistance, but was turned down again. Who knew a Legal Aid lawyer’s opinion letter could be so powerful!
District Judge Magnuson dismissed Calgaro’s lawsuit on May 23, 2017. As a practical matter, E.J.K. was then less than two months from turning 18, at which point she would become a legal adult and emancipated as a matter of law, so Calgaro’s request for injunctive relief would quickly become moot.
The trial court rejected Calgaro’s argument that the county, the school district, the health care institutions, or the individual named plaintiffs had violated Calgaro’s constitutional rights by declaring her child to be emancipated, for, the judge concluded, the defendants “did not emancipate E.J.K. and Calgaro continues to have sole physical and joint legal custody of E.J.K.” The question remaining is what flows from the fact that until turning 18, E.J.K. continued to be a minor in the custody of Calgaro, even though she was no longer living at home and was effectively managing her own life without parental guidance.
Turning first to the health care institutions, the court pointed out that they are not “state actors” but rather private, non-profit entities, so the Due Process Clause does not impose any legal obligations on them, and they could rely on the Legal Aid lawyer’s letter and act accordingly without accruing any liability under the federal constitution.
As to the school district, the court found that the district could not be held liable for actions of its employees, only for its own policies or customs, and there was no evidence that the school district had any particular policy or custom regarding how to deal with transgender students or their parents. “Calgaro fails to provide any facts that the School District executed a policy or custom that deprived Calgaro of her parental rights without due process,” wrote Magnuson.
As to Principal Johnson, the court found that he enjoyed “qualified immunity” from any personal liability for the actions he took as principal of Cherry School, so long as he was not violating any clearly-established constitutional right of Calgaro, and the court found no support in published court opinions for a constitutional right of parents to have access to their child’s school records.
The judge also rejected Calgaro’s argument that the County violated her rights by providing financial assistance to E.J.K. without Calgaro’s consent or participation. The County was providing assistance based on its interpretation of a Minnesota statute that allows payment of welfare benefits to some who does not have “adequate income” and is “a child under the age of 18 who is not living with a parent, stepparent, or legal custodian” but “only if: the child is legally emancipated or living with an adult with the consent of an agency acting as a legal custodian,” with “legally emancipated” meaning “a person under the age of 18 years who: (i) has been married; (ii) is on active duty in the uniformed services of the United States; (iii) has been emancipated by a court of competent jurisdiction; or (iv) is otherwise considered emancipated under Minnesota law, and for whom county social services has not determined that a social services case plan is necessary, for reasons other than the child has failed or refuses to cooperate with the county agency in developing the plan.”
Judge Magnuson pointed out that under this statute, the county was not necessarily required to give E.J.K. financial assistance — it was a discretionary decision by the local officials — but that as with her suit against the school district, Calgaro failed to identify a policy or custom that would subject the county to liability. The court found the county could not be held liable for violating Calgaro’s Due Process rights based on the decision by county officials to provide benefits to E.J.K., and that the head of the county welfare agency, also named a defendant, could not be sued because there was no evidence she had anything to do with the decision to provide the benefits.
Furthermore, Calgaro could not sue E.J.K. “Calgaro stops short of making the absurd argument that E.J.K. deprived Calgaro of her parental rights without due process while acting under color of state law,” wrote Magnuson, who found that as all of Calgaro’s other claims had to be dismissed, any claim against E.J.K. had to fall as well.
Calgaro appealed to the 8th Circuit, which issued a brief decision on March 25, 2019, affirming the district court in all particulars. Furthermore, noting the passage of time, Circuit Judge Steven Colloton wrote, “Calgaro’s remaining claims for declaratory and injunctive relief against the several defendants are moot. E.J.K. has turned eighteen years old, ceased to be a minor under Minnesota law, and completed her education in the St. Louis County School District. There is no ongoing case or controversy over Calgaro’s parental rights to make decisions for E.J.K. as a minor or to access her medical or educational records.”
Calgaro tried to argue that because she has three minor children other than E.J.K., she has a continuing interest in establishing as a matter of law that the various defendants should not be able to override her parental rights with respect to her remaining minor children, but the court found that “Calgaro has not established a reasonable expectation that any of her three minor children will be deemed emancipated by the defendants.”
Calgaro is represented by the Thomas More Society, a religious freedom litigation group, which is trying to use this case to establish the rights of parents, presenting two questions to the Supreme Court: first, whether parents’ Due Process rights to custody and control of their minor children “apply to local governments and medical providers” such that these entities cannot invade “parental rights, responsibilities or duties over their minor children’s welfare, education and medical care decisions without a court order;” and, second, in a rather long and convoluted question, whether the Minnesota statute defining emancipation is unconstitutional to the extent that it might be construed to authorize entities in the position of the defendants to do the things they did in this case.
Although the Petition does not stage this case as a religious free exercise case, the advocacy of Thomas More Society suggests that religious objections to transgender identity and transitional care underlie its interest in the case, and that if the Court were to grant the Petition, many religious organizations would be among those arguing that a parent should be able to prevent schools, government agencies, and health-care providers from assistant minors who identify as transgender from effectively freeing themselves from parental control as they seek to live in the gender with which they identify.
The National Center for Lesbian Rights provided legal representation to E.J.K. in the lower courts, and continues to represent E.J.K. as one of the named respondents in this Petition.
The odds against this Petition being granted are long, but the Court’s recent trend of taking an expansive view of religious free exercise rights suggests that it would not be totally surprising were the Court to take this case for review.