Amber Lavigne, of Newcastle, in March 2023. She sued Great Salt Bay Community School District saying a counselor encouraged her teen’s gender transition without consulting her. Stephen Davis Phillips/Goldwater Institute via AP

A federal appeals court is weighing whether a Lincoln County mother should be allowed to sue her local school district for allowing her child to use a different name and pronouns in school without telling her.

A federal judge had dismissed the case in May, saying Newcastle mother Amber Lavigne lacked a claim eligible for legal relief. Lavigne had already pulled her child out of school. She appealed the decision later that month to the 1st U.S. Circuit Court of Appeals in Boston, where oral arguments were held Wednesday morning.

Lavigne initially filed a suit against the Damariscotta-based district in April 2023, alleging it violated her parental rights when teachers and administrators allowed her child to use a different name and pronouns in school than what had been assigned at birth. She also alleges a school counselor gave the 13-year-old a chest binder.

Lavigne is represented by the conservative Arizona-based think tank the Goldwater Institute. The plaintiff’s broader argument is that the Great Salt Bay Community School infringed on parental rights and the 14th Amendment.

“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 (the child),” the suit reads.

The district has said that its policies were in accordance with state laws that provide equal education access for all students, regardless of gender identity, and released statements asserting it had not violated its policies in this incident.

A spokesperson for the Goldwater Institute declined a request to interview Lavigne but said she did attend the hearing in Boston on Wednesday.

School staff at Great Salt Bay said they have received threats since the case was filed, which led to the school being closed at least twice.

It was not clear Wednesday when the justices will issue a ruling, but the case could be among those with national implications.

The case comes amid a rise in others about parental rights over their children’s gender expression in schools. Twelve states – Alaska, Georgia, Idaho, Iowa, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Carolina, South Dakota and West Virginia – submitted briefs in support of Lavigne’s appeal.

APPEAL HINGES ON ‘SECRET’ POLICY

When Chief U.S. District Judge Jon Levy dismissed the case in May, he said it failed to provide facts that would establish the district’s liability.

The plaintiffs have focused their argument on what they say is an unwritten policy the school district has to conceal information about a child’s gender expression from their parents – information which they say pertains to the mental health and well-being of a student.

Attorney Adam Shelton pointed to a few statements by school officials – and the fact that the school social worker had his contract renewed after the incident – as evidence of an implied secret policy.

The judges had lots of questions about that argument, asking Shelton about the lack of other examples of students being subject to this policy, suggesting school officials may have used their own discretion rather than following a secret policy, and calling the statements he referred to as “unclear.”

The school district’s attorney, Melissa Hewey, argued that the plaintiffs have given no plausible proof of a secret policy and that they failed to show there was any widespread pattern of concealment from parents.

“In establishing a custom, they need to show more than one incident. And here, as the district court found, the only factual allegations pled in the complaint include one allegation,” Hewey said.

She said any such policy would be hard to hide.

“This is a tiny community in Midcoast Maine that could practically fit in this courtroom,” she concluded. “If there were a policy or a custom of doing this kind of thing, everyone would know it.”