The U.S. Supreme Court said Friday that it will hear a case on whether reading LGBTQ-inclusive picture books in an elementary school classroom without giving parents a chance to opt out their children violates the parents’ religious freedom. Here are the details—plus an exclusive quote from one of the authors whose books are involved.
The Case
The case began when in 2022, the Montgomery County Public Schools (MCPS) added a number of LGBTQ-inclusive picture books to its supplemental curriculum. MCPS communications director Jessica Baxter told Bethesda magazine at the time that “These books are not mandatory,” but “are on the approved list of supplemental materials schools will have access to that align with our goal of providing more inclusive texts and resources in support of curriculum standards.”
She explained that the books were evaluated per procedures for adding any new book to the curriculum. A committee of five MCPS staff members chose the books and completed a comprehensive evaluation form for each title, after which a content supervisor individually reviewed the forms before making the books available to teachers. The committee said they chose the books because they represent “joyful stories of folks who happen to be part of the LGBTQ+ community.”
A group of parents in the county, however, brought a lawsuit in 2023 against MCPS, claiming that it was a violation of the parents’ religious freedom not to give them the chance to opt their children out before the books were read in the classroom. The specific books they named as objectionable were:
- Born Ready: The True Story of a Boy Named Penelope;
- IntersectionAllies: We Make Room for All;
- Jacob’s Room to Choose;
- Love, Violet;
- My Rainbow;
- Pride Puppy;
- Prince & Knight;
- Uncle Bobby’s Wedding;
- What Are Your Words?
These are all books written for elementary school children; I’ve reviewed them myself for my Database of LGBTQ Family Books (click the links above) and found them to be both inclusive and well written.
The Associate Superintendent of Curriculum and Instructional Programs for MCPS responded to the plantiffs in a court filing, saying the books were not intended to be part of “explicit instruction on gender identity and sexual orientation in elementary school,” and “no student or adult is asked to change how they feel about these issues.” Instead, teachers were expected to ‘incorporate the [Storybooks] into the curriculum in the same way that other books are used, namely, to put them on a shelf for students to find on their own; to recommend a book to a student who would enjoy it; to offer the books as an option for literature circles, book clubs, or paired reading groups; or to use them as a read aloud.”
A federal district court denied the plaintiff parents a preliminary injunction that would have temporarily required the district to let parents opt out their children. The Fourth Circuit Court of Appeals affirmed that decision last May in a 2-1 ruling. Judge Steven Agee wrote for the majority, “What is missing here is the evidentiary link showing that the Storybooks are being implemented in a way that directly or indirectly coerces the Parents or their children to believe or act contrary to their religious faith,” adding, “The Parents have not shown that the Board’s failure to provide notice and an opt-out opportunity creates a likelihood of violating their free-exercise rights.”
The plaintiffs then asked the Supreme Court to take the case, Mahmoud v. Taylor, and that’s what it has just agreed to do.
Thoughts and Analysis
Sarah Brannen, author of Uncle Bobby’s Wedding, told me in an e-mail:
Children need to see themselves in books. The books in the lawsuit need to be in the school and accessible to all the children in the school, without interference. I fear that the Supreme Court agreeing to hear this suit will turn out to be another salvo in the Republican’s ongoing campaign to remove LGBTQ books from libraries and bookstores, and we all know by now that banning books is the first step toward banning people.
She added, “A public school can’t function if individual parents are going to pick and choose individual books and topics according to what they want their children to hear about or not to hear about.”
I fully agree. Should kosher-observant Jewish parents be allowed to opt out their children before Green Eggs and Ham, a book that celebrates the enjoyment of a non-kosher food, is read in the classroom? Of course not (and I say that as a Jew).
How the current court will rule in Mahmoud v. Taylor is anyone’s guess. I will note that in 2008, the Supreme Court rejected the appeal of plaintiffs in Parker v. Hurley, who claimed that the Lexington, Massachusetts, public school district violated their constitutional rights by putting LGBTQ-inclusive books like King & King in its elementary school curriculum. In that case, the First Circuit Court of Appeals in a unanimous ruling had written:
The mere fact that a child is exposed on occasion in public school to a concept offensive to a parent’s religious belief does not inhibit the parent from instructing the child differently. A parent whose ‘child is exposed to sensitive topics or information [at school] remains free to discuss these matters and to place them in the family’s moral or religious context, or to supplement the information with more appropriate materials.’ . . . There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations.
The fact that the Supreme Court refused to hear an appeal of that ruling should be encouraging—but that was a very different court. Today, I fear, all bets are off.
I’ll leave deep legal analysis to the lawyers (though I’ll try to summarize and share some of their thoughts in future posts), but will note that even the plaintiffs in Mahmoud v. Taylor admit that five circuit courts (including the one in Parker) “hold that forced participation in public school instruction cannot alone burden free exercise [of religion],” versus only one (the 8th Circuit) which holds that it can. The plaintiffs feel that the 8th Circuit is right, however, and that “Its approach aligns with the national statutory consensus in favor of religious opt-outs for sexual education.” That’s misleading: None of the books in question has anything about sexual education in it.
Some might feel that letting parents opt out their children is a better solution than outright bans of LGBTQ-inclusive books (such as the “Don’t Say Gay/LGBTQ” laws in Florida, Ohio, and other states). Perhaps—but only to a point. The administrative burden of having to notify parents, collect their responses, answer any questions they may have about the material, and determine what the opted-out students will do during class time when the LGBTQ books are read may dissuade schools from including LGBTQ books in the first place.
Like Brannen, too, I think books are only part of the story, as I similarly wrote about Parker v. Hurley back in 2007. To repeat (and slightly freshen up) my argument: LGBTQ children and children with LGBTQ parents (or other relatives) are a part of school communities across the country. Do those who want to opt-out their children before books with LGBTQ identities are read also want to opt them out before my kid talks about riding his bike with his Mommy and Momma? Or before he brings in a rainbow flag for show-and-tell and talks about attending Pride? What about a trans or nonbinary kid who is changing the pronouns they use, or wants to talk about how proud they are to wear a dress for the first time? It’s a small and slippery step between regulating LGBTQ-inclusive books and restricting what children say about themselves and their families. They will be censored and segregated simply because some parents have no faith in their abilities to counteract what kids may encounter at school.
And yes, for some, restricting kids may be the point. A bill to ban trans girls from participating in school sports has already passed the House this year. (Contact your senators and ask them to stop it in the Senate.) Bills have been enacted and are moving forward to ban trans people (including kids) from bathrooms matching their genders. And newly inaugurated President Trump issued an executive order yesterday trying to define trans and nonbinary people out of existence. (This won’t work.)
Watch the Mahmoud v. Taylor case carefully, then. It’s not just about the books.
