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Virginia AG sides with religious parents in federal appeal over LGBTQ books in schools

Parental rights aren’t just a hot topic in Virginia; in Maryland one county has gone as far as integrating LGBTQ-inclusive books in their English language curriculum as young as kindergarten.

Maryland’s Montgomery County school system was sued by religious families, and their fight came to Richmond’s Fourth Circuit Court of Appeals Tuesday morning where Virginia, via Attorney General Jason Miyares, also got involved.

Tamer Mahmoud is the lead parent on the dispute which seeks to create an opt out program in the county’s English Language Arts program that would keep books showing LGBTQ families from their children’s view.

“Your honors, there’s a long-standing national consensus that elementary aged students should not be exposed to instruction on sexuality and gender without the permission of their parents,” said Becket Fund for Religious Liberty attorney Eric Baxter, who represented the parents.

Baxter’s claim was backed up by Virginia Attorney General Jason Miyares in an amicus brief submitted in September. In that filing his office, along with 16 other states, argued if a school plans to include any books featuring LGBTQ content parents should be notified and given the chance to opt out.

“The school board’s policy requires children to participate in sex education even where they or their families object on religious grounds,” Virginia solicitor general Andrew Furgeson wrote. “By refusing notice and opt outs, the school board is infringing on the parents’ and children’s rights.”

The lack of an opt out option was key to the dispute and the basis of the appeal before the court. Montgomery County had approved the curriculum, adding LGBTQ inclusive books for English programs from kindergarten through fifth grade, and they, at first, had an opt out program. But the number of parents who used the opt-out system created attendance issues which the county argued disrupted the learning environment.

WilmerHale attorney Alan Schoenfeld, who represented the school system, argued concerns about a child being exposed to LGBTQ content were not enough to force the county to create such an opt out.

“Exposure to the existence of LGBT people and LGBT families through these texts is not a constitutionally cognizable burden,” Schoenfeld said. “Part of the compromise of sending your children to public schools is that they may be exposed to material you find offensive or contradictory to your religious beliefs.”

But Circuit Judge Steven Agee, a George W. Bush appointee, pointed to language from the record which suggested the material was added to “disrupt” children’s thinking.

“Is a parent to have no recourse, other than withdrawing their child from school, if that’s the position of the state?” the judge asked.

According to the county, the addition of the LGBTQ books, including titles like Pride Puppy which tell the story of a puppy seeing their first pride parade, was instituted by the school system as part of a broader effort to be more inclusive of the district’s community.

But Agee homed in on the age of students being shown the content in one tense exchange with attorney Schoenfeld.

“They're three and four years old, and courts have said repeatedly that’s a significant factor because they are very influenceable,” the judge said.

“Absolutely,” Schoenfeld replied. “But there are three- and four-year-olds in Montgomery County schools who have gay parents. And prior to the introduction of these texts, they didn’t see their parents.”

Virginia Attorney General Jason Miyares
Brad Kutner
Radio IQ
Virginia Attorney General Jason Miyares

Miyares declined the chance to offer additional comment to Radio IQ, but his brief stressed concerns about constitutional issues the lack of an opt out policy creates.

“Although States can set curricula in public schools, States also recognize that parents—not governments—typically have the right to direct the education of children and often allow parents to exclude their children from sexual health instruction for any grounds (or no grounds) whatsoever,” the brief says.

But the link curriculum has to school boards and officials elected to make those decisions could also come to play in this dispute. And another member of Tuesday’s panel, Donald Trump appointee Circuit Judge Marvin Quattlebaum, already ruled on that matter in another case against Montgomery County’s school system earlier this year.

In that dispute parents challenged an LGBTQ-inclusive policy for students, and while the religious parents there argued it too violated their religious beliefs, Quattlebaum said the courts weren’t the right venue for such complaints.

“Policy disagreements should be addressed to elected policymakers at the ballot box, not to unelected judges in the courthouse,” he wrote.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Brad Kutner is Radio IQ's reporter in Richmond.