USCA4 Appeal: 23-1890 Doc: 102-1 Filed: 10/30/2023 Pg: 1 of 28
`
`No. 23-1890
`
`In the United States Court of Appeals
`for the Fourth Circuit
`
`TAMER MAHMOUD; ENAS BARAKAT; JEFF ROMAN; SVITLANA
`ROMAN; CHRIS PERSAK; MELISSA PERSAK, in their individual capacities
`and ex rel. their minor children; KIDS FIRST, an unincorporated association,
`Plaintiffs-Appellants,
`
`v.
`
`MONIFA B. MCKNIGHT; SHEBRA EVANS; LYNNE HARRIS; GRACE
`RIVERA-OVEN; KARLA SILVESTRE; REBECCA SMONDROWSKI;
`BRENDA WOLFF; JULIE YANG; MONTGOMERY COUNTY BOARD OF
`EDUCATION,
`
`Defendants-Appellees.
`
`On Appeal from the United States District Court for the District of Maryland
`The Honorable Deborah L. Boardman
`District Court Case No. 8:23-cv-1380
`
`
`
`BRIEF OF AMICI CURIAE LAMBDA LEGAL DEFENSE AND
`EDUCATION FUND, INC.; GLBTQ LEGAL ADVOCATES & DEFENDERS;
`NATIONAL CENTER FOR LESBIAN RIGHTS; HUMAN RIGHTS
`CAMPAIGN FOUNDATION; THE TREVOR PROJECT, INC; GLSEN,
`INC.; PFLAG, INC. AND PFLAG REGIONAL CHAPTERS; EQUALITY
`NORTH CAROLINA; SOUTH CAROLINA EQUALITY, INC.; MOCO
`PRIDE CENTER; FCPS PRIDE; RAINBOW YOUTH ALLIANCE; SMYAL;
`WHITMAN-WALKER HEALTH; AND WHITMAN-WALKER INSTITUTE
`IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE
`
`Karen L. Loewy
`LAMBDA LEGAL DEFENSE AND
`EDUCATION FUND, INC.
`1776 K Street NW, 8th Floor
`Washington, DC 20006
`(202) 804-6245
`kloewy@lambdalegal.org
`
`
`
`
`Jeffrey M. Gutkin
`Reece Trevor
`COOLEY LLP
`3 Embarcadero Center, 20th Floor
`San Francisco, CA 94111
`(415) 693 2000
`jgutkin@cooley.com
`rtrevor@cooley.com
`
`

`

`USCA4 Appeal: 23-1890 Doc: 102-1 Filed: 10/30/2023 Pg: 2 of 28
`
`Urvashi Malhotra
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA
`(650) 843-5000
`umalhotra@cooley.com
`
`Shannon Minter
`Christopher F. Stoll
`NATIONAL CENTER FOR LESBIAN RIGHTS
`870 Market St., Suite 370
`San Francisco, CA 94102
`(415) 392-6257
`sminter@nclrights.org
`cstoll@nclrights.org
`
`Paul D. Castillo
`LAMBDA LEGAL DEFENSE AND
`EDUCATION FUND, INC.
`3500 Oak Lawn Avenue, Suite 500
`Dallas, TX 75219
`(214) 302-2216
`pcastillo@lambdalegal.org
`
`Mary L. Bonauto
`Gary D. Buseck
`GLBTQ LEGAL ADVOCATES
`& DEFENDERS
`18 Tremont St., Suite 950
`Boston, MA 02108
`(617) 426 1350
`mbonauto@glad.org
`gbuseck@glad.org
`
`
`
`
`
`
`
`
`

`

`USCA4 Appeal: 23-1890 Doc: 102-1 Filed: 10/30/2023 Pg: 3 of 28
`
`
`TABLE OF CONTENTS
`
`
`
`INTRODUCTION & INTEREST OF AMICI ........................................................ 1
`
`Page
`
`
`ARGUMENT
`
`
`I.
`
`II.
`
`All Students Benefit From A School Climate That Promotes
`Acceptance And Respect. .................................................................. 2
`
`LGBTQ Young People Face Particular Risks, Including In
`Schools. ............................................................................................. 5
`
`III. The Storybooks Advance Appellees’ Compelling Interest In
`Ensuring A Safe, Supportive School Environment In Which All
`Students Can Thrive. .......................................................................... 9
`
`
`
`
`CONCLUSION ....................................................................................................18
`
`
`APPENDIX A.......................................................................................................19
`
`
`CERTIFICATE OF COMPLIANCE ....................................................................20
`
`
`CERTIFICATE OF SERVICE ..............................................................................21
`
`- i -
`
`

`

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`
`
`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Page(s)
`
`Ambach v. Norwick,
`
`441 U.S. 68 (1979) .......................................................................................... 10
`
`Bethel Sch. Dist. No. 403 v. Fraser,
`478 U.S. 675 (1986) ......................................................................................... 11
`
`Colin ex rel. Colin v. Orange Unified Sch. Dist.,
`83 F. Supp. 2d 1135 (C.D. Cal. 2000) .............................................................. 12
`
`Gonzalez Through Gonzalez v. Sch. Bd. of Okeechobee Cnty.,
`571 F. Supp. 2d 1257 (S.D. Fla. 2008) ............................................................. 12
`
`
`
`Parker v. Hurley,
`514 F.3d 87 (1st Cir. 2008) .............................................................................. 11
`
`Statutes
`
`Md. Code Regs. 13A.01.04.03 ................................................................................ 9
`
`Other Authorities
`
`Michael J. Pellicane & Jeffrey A. Ciesla, Associations between
`minority stress, depression, and suicidal ideation and attempts in
`transgender and gender diverse (TGD) individuals: Systematic
`review and meta-analysis, 91 Clinical Psych. Rev. 102113 (2022) .................... 6
`
`First Amendment .................................................................................................. 16
`
`Antonya M. Gonzalez et al., Reducing Children's Implicit Racial Bias
`Through Exposure to Positive Out-Group Exemplars, 88 Child
`Development 123 (2017) ................................................................................. 16
`
`April J. Ancheta et al., The Impact of Positive School Climate on
`Suicidality and Mental Health Among LGBTQ Adolescents: A
`Systematic Review, 37 J. Sch. Nursing 75 (2021) ............................................... 6
`
`Ctrs. for Disease Control & Prevention, School Connectedness:
`Strategies for Increasing Protective Factors Among Youth (2009) .................... 4
`
`- ii -
`
`

`

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`
`TABLE OF AUTHORITIES
`(Continued)
`
`Page(s)
`
`Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471
`(2008) .............................................................................................................. 13
`
`Didier Jourdan et al., Supporting every school to become a foundation
`for healthy lives, 5 Lancet Child & Adolescent Health 295 (2021) .................... 4
`
`Elena Monoyiou & Simoni Symeonidou, The wonderful world of
`children's books? Negotiating diversity through children's
`literature, 20 Int'l J. Inclusive Educ. 588 (2015) .............................................. 10
`
`Emile Lester & Patrick S. Roberts, Learning About World Religions in
`Modesto, California: The Promise of Teaching Tolerance in Public
`Schools, 4 Politics & Religion 264 (2011) ....................................................... 16
`
`Emily A. Greytak, Joseph G. Kosciw, & Madelyn J. Boesen; Putting
`the “T” in “Resource”: The Benefits of LGBT-Related School
`Resources for Transgender Youth, 10 J. LGBT Youth 45 (2013) ..................... 15
`
`Experiences of Students with LGBTQ+ Caregivers and their Families
`in K-12 Schools, GLSEN (2023) ........................................................................ 8
`
`Fed. R. App. P. 29(a)(4)(E) ..................................................................................... 1
`
`Hilary Burdge et al., Implementing Lessons That Matter: The Impact
`of LGBTQ-Inclusive Curriculum on Student Safety, Well-Being,
`and Achievement, GSA Network (2013),
`https://gsanetwork.org/wp-
`content/uploads/2018/08/Implementing_Lessons.pdf............................... 7, 8, 15
`
`Human Rights Campaign, We Are Here: Understanding the Size of
`the LGBTQ+ Community (2021) ...................................................................... 14
`
`Joseph A. Durlak et al., The Impact of Enhancing Students' Social and
`Emotional Learning: A Meta-Analysis of School-Based Universal
`Interventions, 82 Child Dev. 405 (2011) ............................................................ 3
`
`Joseph G. Kosciw et al., The 2019 National School Climate Survey:
`The Experiences of Lesbian, Gay, Bisexual, Transgender, and
`Queer Youth in Our Nation's Schools, GLSEN (2020) ..................................... 15
`
`- iii -
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`

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`
`TABLE OF AUTHORITIES
`(Continued)
`
`Page(s)
`
`Joseph G. Kosciw et al., The 2021 National School Climate Survey:
`The Experiences of LGBTQ+ Youth in Our Nation's Schools,
`GLSEN (2022) ................................................................................................... 7
`
`Kari McDonald, Social Support and Mental Health in LGBTQ
`Adolescents: A review of the literature, 39 Issues in Mental Health
`Learning (2018) ................................................................................................. 6
`
`Laura Baams et al., Comprehensive Sexuality Education as a
`Longitudinal Predictor of LGBTQ Name-Calling and Perceived
`Willingness to Intervene in School, 46 J. Youth Adolescence 931
`(2017) .............................................................................................................. 11
`
`Mary L. Bonauto & Arielle B. Kristan, Discrimination and
`Harassment Based on Sexual Orientation and Gender Identity, EL
`MA-CLE 12-1 (2022) ...................................................................................... 12
`
`Maryland College and Career Ready Standards Framework: Reading
`Literature PreK ................................................................................................ 13
`
`Montgomery Cnty. Pub. Schs., 2022-2023 Guidelines for Respecting
`Religious Diversity (2022) ....................................................................... 5, 9, 10
`
`Nanette Gartrell & Henry Bos, US National Longitudinal Lesbian
`Family Study: Psychological Adjustment of 17-Year-Old
`Adolescents, 126 Pediatrics (2010)................................................................. 8, 9
`
`Nat’l Council for the Social Studies, The College, Career, and Civic
`Life (C3) Framework for Social Studies State Standards: Guidance
`for Enhancing the Rigor of K-12 Civics, Economics, Geography,
`and History (2013) ........................................................................................... 14
`
`Organization for Econ. Co-operation and Dev., Equity and Inclusion
`in Education: Finding Strength through Diversity (2023) .................................. 4
`
`Paddy C. Favazza & Samuel L. Odom, Promoting Positive Attitudes
`of Kindergarten-Age Children Toward People with Disabilities, 63
`Exceptional Children 405 (1997) ..................................................................... 16
`
`Policy: Nondiscrimination, Equity, and Cultural Proficiency, Board of
`Education of Montgomery County (2021).......................................................... 9
`
`- iv -
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`

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`
`TABLE OF AUTHORITIES
`(Continued)
`
`Page(s)
`
`Quick Guide on Making School Climate Improvements, Nat’l Ctr. on
`Safe Supportive Learning Env’ts (2d ed. 2018) .................................................. 2
`
`Sari L. Reisner et. al., Addressing LGBTQ Student Bullying in
`Massachusetts Schools: Perspectives of LGBTQ Students and
`School Health Professionals, 21 Prevention Sci. 408 (2020).............................. 7
`
`School Climate Improvement, Nat’l Ctr. on Safe Supportive Learning
`Env’ts, https://safesupportivelearning.ed.gov/school-climate-
`improvement ...................................................................................................... 3
`
`Shannon D. Snapp et al., LGBTQ-inclusive curricula: why supportive
`curricula matter, 15 Sex Education 580 (2015), ........................................ 11, 14
`
`Sophie Maxwell et al., The Impact of School Climate and School
`Identification on Academic Achievement: Multilevel Modeling with
`Student and Teacher Data, 8 Frontiers in Psych. 1 (2017) ................................. 5
`
`Suzanne B. Goldberg, Sticky Intuition and the Future of Sexual
`Orientation Discrimination, 57 UCLA L. Rev. 1375 (2010) ............................ 13
`
`The Trevor Project, 2022 National Survey on LGBTQ Youth Mental
`Health (2022) ..................................................................................................... 6
`
`U.S. Dep’t of Educ., Guiding Principles for Creating Safe, Inclusive,
`Supportive, and Fair School Climates (Mar. 2023) ............................................ 3
`
`U.S. Dep’t of Educ. Off. of Elementary and Secondary Educ., A
`Parent and Educator Guide to School Climate Resources (Apr. 10,
`2019) ............................................................................................................. 3, 5
`
`
`
`
`
`
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`
`INTRODUCTION & INTEREST OF AMICI1
`
`Amici curiae—34 organizations comprising parents, students, educators, civil
`
`rights advocates, and health care and suicide prevention service providers—
`
`represent, support, and provide health services to lesbian, gay, bisexual, transgender,
`
`and queer/questioning (“LGBTQ”) people throughout Montgomery County, this
`
`Court’s jurisdiction, and the nation. As part of their various missions, amici are
`
`committed to ensuring that children and young people have access to full and
`
`equitable educational, social, economic, and other opportunities, and that their
`
`mental and physical wellbeing are protected. Schools across the country, including
`
`the Montgomery County public schools at the core of this litigation, will play a
`
`pivotal role in LGBTQ young people’s lives, whether that role is helpful or harmful.
`
`Drawing on their experience and expertise in this field, amici seek to provide this
`
`Court a broad and empirically grounded view of the landscape of LGBTQ youths’
`
`lives, the challenges many of them face, and the critical importance of inclusive
`
`curricula like the books at issue in this litigation to create a school climate where all
`
`students can safely and effectively learn.
`
`
`1 All parties have consented to the filing of this brief. No counsel for a party authored
`this brief in whole or in part and no person other than amici or their counsel made a
`monetary contribution to the preparation or submission of this brief. See Fed. R.
`App. P. 29(a)(4)(E). A complete list of amici appears as Appendix A to this brief.
`
`- 1 -
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`
`Amici’s purpose in this brief is twofold. First, amici provide an evidence-
`
`based overview of the importance of welcoming, respectful school climates for every
`
`student—but especially for LGBTQ students, who face disparate and at times dire
`
`risks when their peers do not view them with acceptance and humanity. As the
`
`research amply demonstrates, inclusive curricula like the materials that Appellants
`
`challenge (the “Storybooks”) are integral to creating such a climate for LGBTQ
`
`students and those students with LGBTQ parents. Second, while amici urge this
`
`Court to affirm the District Court’s well-reasoned conclusions that Appellants have
`
`failed to allege any burden on their free exercise of religion and that their substantive
`
`due process claims fail under rational basis review, amici also submit that, should
`
`this Court disagree and apply strict scrutiny, Appellees have established a
`
`sufficiently compelling government interest to warrant affirmance.
`
`I.
`
`All Students Benefit From A School Climate That Promotes Acceptance
`And Respect.
`
`For decades, educators and policymakers have recognized the importance of
`
`creating optimal “conditions for learning” in schools, and that this includes
`
`“support[ing] physical and emotional safety, connection and support, and
`
`engagement.” Quick Guide on Making School Climate Improvements, Nat’l Ctr. on
`
`Safe
`
`Supportive
`
`Learning
`
`Env’ts
`
`(2d
`
`ed.
`
`2018),
`
`at
`
`1,
`
`https://safesupportivelearning.ed.gov/sites/default/files/SCIRP/NCSSLE_SCIRP_
`
`QuickGuide508%20gdc.pdf. Often referred to as a school’s “climate,” this dynamic
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`
`describes “a school’s attention to fostering safety; promoting a supportive academic,
`
`disciplinary, and physical environment; and encouraging and maintaining respectful,
`
`trusting, and caring relationships throughout the school community no matter the
`
`setting—from Pre-K/Elementary School to higher education.” School Climate
`
`Improvement, Nat’l Ctr.
`
`on
`
`Safe
`
`Supportive
`
`Learning
`
`Env’ts,
`
`https://safesupportivelearning.ed.gov/school-climate-improvement. Accepting and
`
`tolerant school climates are important at every level, but especially in primary and
`
`secondary schools, which are an influential setting for children to learn social skills
`
`and to cultivate responsibility, accountability, and independence. See Joseph A.
`
`Durlak et al., The Impact of Enhancing Students’ Social and Emotional Learning: A
`
`Meta-Analysis of School-Based Universal Interventions, 82 Child Dev. 405, 417–19
`
`(2011).
`
`When a school “effectively attends to all the social, emotional, and academic
`
`support needs of its students,” the benefits are real and substantial across the board.
`
`U.S. Dep’t of Educ. Off. of Elementary and Secondary Educ., A Parent and
`
`Educator Guide to School Climate Resources, (April 10, 2019), at 2. School
`
`climates that foster a sense of belonging and community not only provide a more
`
`supportive learning environment in which children learn to respect those who differ
`
`from them, but also report better test scores, graduation rates, student engagement,
`
`mental and physical health, and brain development. U.S. Dep’t of Educ., Guiding
`
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`
`Principles for Creating Safe, Inclusive, Supportive, and Fair School Climates,
`
`(MaR. 2023), at 7–8 (noting the importance of school climates that “encourage and
`
`maintain respectful, trusting, and caring relationships throughout the school
`
`community”); see also Organization for Econ. Co-operation and Dev., Equity and
`
`Inclusion in Education: Finding Strength through Diversity, (2023), at 248
`
`(“Research indicates that a positive school climate promotes students’ abilities to
`
`learn . . . with a number of studies having shown that school climate is directly
`
`related to academic achievement, at all school levels”); Ctrs. for Disease Control &
`
`Prevention, School Connectedness: Strategies for Increasing Protective Factors
`
`Among Youth,(2009), at 7 (discussing the importance of “[a] positive school
`
`environment . . . characterized by caring and supportive interpersonal relationships;
`
`opportunities to participate in school activities and decision-making; and shared
`
`positive norms, goals, and values.”).
`
`Not surprisingly, negative school climates characterized by a lack of support,
`
`safety, and respect among students produce the opposite effect. See, e.g., Didier
`
`Jourdan et al., Supporting every school to become a foundation for healthy lives, 5
`
`Lancet Child & Adolescent Health 295, 295 (2021). As the federal Department of
`
`Education reports, “research indicates that schools with negative school climates”—
`
`those that do not “maintain[] respectful, trusting, and caring relationships throughout
`
`the school community”—“adversely affect student health, wellbeing and
`
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`achievement.” U.S. Dep’t of Educ. Off. of Elementary and Secondary Educ., A
`
`Parent and Educator Guide to School Climate Resources, (Apr. 10, 2019), at 2, 5;
`
`see also Sophie Maxwell et al., The Impact of School Climate and School
`
`Identification on Academic Achievement: Multilevel Modeling with Student and
`
`Teacher Data, 8 Frontiers in Psych. 1, (2017), at 3 (“[A] negative school climate has
`
`been found to reduce student participation in school activities and student
`
`learning.”). Even though a school’s students may experience a negative climate in
`
`different ways, the likelihood of poor outcomes remains higher for all of them. For
`
`example, as Montgomery County Public Schools have recognized, “[s]tudents who
`
`are bullied, students who bully, and students who are bystanders to bullying are at
`
`risk of a range of negative health, safety, and educational outcomes.” Montgomery
`
`Cnty. Pub. Schs., 2022-2023 Guidelines for Respecting Religious Diversity, (2022),
`
`at 6.
`
`II. LGBTQ Young People Face Particular Risks, Including In Schools.
`
`Supportive schools and their protective, nurturing influence are important to
`
`every child, including LGBTQ students, who face outsized risks of all kinds, from
`
`bullying to isolation to self-doubt. The statistics regarding the challenges for
`
`LGBTQ students paint a clear and troubling picture for policymakers and
`
`administrators who aim to create a safe and effective learning environment for all
`
`students.
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`
`Due to the challenges of living in a culture in which they are often
`
`marginalized, mental and physical health risks among LGBTQ young people are
`
`significantly higher than those among the general population. Studies consistently
`
`show that LGBTQ youth experience depression, disordered eating, and self-harm at
`
`far higher rates than their peers. See Kari McDonald, Social Support and Mental
`
`Health in LGBTQ Adolescents: A review of the literature, 39 Issues in Mental Health
`
`Learning, (2018), at 16; Michael J. Pellicane & Jeffrey A. Ciesla, Associations
`
`between minority stress, depression, and suicidal ideation and attempts in
`
`transgender and gender diverse (TGD) individuals: Systematic review and meta-
`
`analysis, 91 Clinical Psych. Rev. 102113, (2022), at 6-7. Consistent with these
`
`findings, nearly 75% of LGBTQ youth surveyed in a major 2022 study reported
`
`experiencing anxiety symptoms, with nearly half saying that they had considered
`
`suicide. See The Trevor Project, 2022 National Survey on LGBTQ Youth Mental
`
`Health, (2022), at 8 (hereinafter “2022 National Survey”); see also April J. Ancheta
`
`et al., The Impact of Positive School Climate on Suicidality and Mental Health
`
`Among LGBTQ Adolescents: A Systematic Review, 37 J. Sch. Nursing 75, 77 (2021)
`
`(reporting similar figures). And these serious issues often go untreated. Nearly 60%
`
`of LGBTQ youth reported that they wanted to obtain help from a mental health
`
`professional but had been unable to receive it over the past year. 2022 National
`
`Survey at 11.
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`
`Negative school climates often seriously exacerbate these problems. Anti-
`
`LGBTQ language is rampant in U.S. schools, with 90% of students surveyed in the
`
`2021-22 school year reporting that they had heard homophobic remarks in school.
`
`Joseph G. Kosciw et al., The 2021 National School Climate Survey: The Experiences
`
`of LGBTQ+ Youth in Our Nation’s Schools, GLSEN (2022), at xvi (hereinafter
`
`“2021 National School Climate Survey”). For a supermajority of students, this kind
`
`of harassment had been directed at them: 76% had experienced “in-person verbal
`
`harassment” at school. Id. Nearly one-third of survey respondents had been
`
`physically harassed, and over half had experienced some kind of sexual harassment,
`
`including unwanted touching or sexual remarks. Id. at xvi-xvii; see also, e.g., Sari
`
`L. Reisner et. al., Addressing LGBTQ Student Bullying in Massachusetts Schools:
`
`Perspectives of LGBTQ Students and School Health Professionals, 21 Prevention
`
`Sci. 408 (2020) (“Lesbian, gay, bisexual, transgender, queer/questioning (LGBTQ)
`
`youth face disparities in bullying victimization that are associated with higher rates
`
`of physical injury, psychological distress, and even suicide.”). As a result, LGBTQ
`
`students often avoid school activities, classroom instruction, and particular settings
`
`that present heightened risks, like bathrooms, lockers rooms, and gym classes. 2021
`
`National School Climate Survey, at 10-11. This, in turn, produces worse educational
`
`outcomes, including lower GPAs and decreased likelihood of pursuing higher
`
`education. Id. at xviii-xx; see also Hilary Burdge et al., Implementing Lessons That
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`
`Matter: The Impact of LGBTQ-Inclusive Curriculum on Student Safety, Well-Being,
`
`and Achievement, GSA Network (2013), at 9, https://gsanetwork.org/wp-
`
`content/uploads/2018/08/Implementing_Lessons.pdf (hereinafter “Implementing
`
`Lessons that Matter”) (“[N]ot only is the student’s ability to focus, complete
`
`assignments, and attend class compromised, but also she ultimately faces the
`
`possibility of a failing grade and/or inability to graduate.”).
`
`Students with LGBTQ parents also face hostility in schools with negative
`
`climates, regardless of their personal sexual orientation or gender identity, including
`
`at very young ages. One national longitudinal study found that one-half of children
`
`of lesbian parents reported that they had experienced homophobic teasing before the
`
`age of 10. Nanette Gartrell & Henry Bos, US National Longitudinal Lesbian Family
`
`Study:
`
`Psychological
`
`Adjustment
`
`of
`
`17-Year-Old
`
`Adolescents, 126 Pediatrics, 28 (2010). In a more recent survey of 455 students aged
`
`14 and up with at least one LGBTQ+ parent or caregiver, 86.8% reported hearing
`
`negative comments about LGBTQ+ parents in general and 80.25% reported hearing
`
`negative comments about their own family in particular. Experiences of Students
`
`with LGBTQ+ Caregivers and their Families in K-12 Schools, GLSEN (2023), at
`
`16, 19, 23. Over two-thirds of participants were verbally harassed at school for
`
`having an LGBTQ parent, and over 20% of those students experienced harassment
`
`frequently or often. Id. at 24. As to exclusion from a school or classroom activity,
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`
`96.6% reported this exclusion had occurred because of having an LGBTQ+ parent
`
`and 68.6% reported being discouraged by a teacher, principal or school staff from
`
`talking about their LGBTQ+ parent or parents at school. Id. at 25.2
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`III. The Storybooks Advance Appellees’ Compelling Interest In Ensuring A
`Safe, Supportive School Environment In Which All Students Can Thrive.
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`Consistent with their regulatory mandate to secure for all students “the right
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`to educational environments that are” “[s]afe,” “[a]ppropriate for academic
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`achievement,” and “[f]ree from any form of harassment,” Appellees have a
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`compelling interest in each and every student being offered curricula that advance
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`these values for all members of their educational community. Md. Code Regs.
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`13A.01.04.03. Montgomery County Public Schools have taken important steps to
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`promote this interest by ensuring that its English Language Arts curriculum
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`represents people with different religious and racial backgrounds. Guidelines for
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`Respecting Religious Diversity, at 4; Policy: Nondiscrimination, Equity, and
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`Cultural Proficiency, Board of Education of Montgomery County (2021), at 5-6.
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`The district’s commitment to curricula that represent LGBTQ families is no
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`different. Particularly in light of the greater risks and dangers that LGBTQ students
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`and students with LGBTQ parents face at school and in society, the Storybooks are
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`2 One student explained, “We had to share some basic information about our family,
`and I said that I had two moms. The students made fun of me, and the teacher told
`me that I couldn’t participate in this activity anymore because I ‘spread
`propaganda.’”
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`an essential part of a curriculum that advances its goal of creating an inclusive
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`environment that supports academic achievement.
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`Far from “indoctrinating” students or forcing them to adopt a particular
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`viewpoint, the Storybooks and related curricula like these “help young children
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`appreciate people with individual characteristics that differ from their own.” Elena
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`Monoyiou & Simoni Symeonidou, The wonderful world of children’s books?
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`Negotiating diversity through children’s literature, 20 Int’l J. Inclusive Educ. 588,
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`589 (2015); see also, e.g., Guidelines for Respecting Religious Diversity at 6 (“With
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`great diversity in our community, there is much that we can learn from each other
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`when there is a culture of respect, openness, and tolerance.”). This bringing together
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`of diverse elements of our society is a quintessential purpose of public schools.
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`Ambach v. Norwick, 441 U.S. 68, 77 (1979). For instance, the principal message of
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`Intersection Allies is that “kids’ lives are unique, as you’ll soon be aware.” JA 144.
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`The book goes on to present short portraits of children with many different
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`characteristics and backgrounds: one uses a wheelchair, one is a bilingual girl who
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`helps her mother at work after school, one wears a hijab, one emigrated from Korea,
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`one prefers wearing a superhero cape instead of “skirts and frills,” and so on. JA
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`144-186. Born Ready describes the challenges, resilience, and triumph of “a boy
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`named Penelope,” who loves “baggy blue jeans,” considers himself “a ninja,” and
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`tells his family that he is a boy—even as his big brother insists, “This doesn’t make
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`sense. You can’t become a boy. You have to be born one.” JA 241-276. And Uncle
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`Bobby’s Wedding tells the story of a girl whose fears that she will lose her favorite
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`uncle when he gets married are assuaged “after spending a fun-filled day” with her
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`uncle and his male fiancé. See JA 108-135.
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`Simply put, instructional materials like the Storybooks—those that portray
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`LGBTQ people and many other characters and facilitate open, nonjudgmental
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`conversations about these issues—serve as “a ‘mirror’ for the person, and a
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`‘window’ into the lives of others,” helping students to “see themselves and learn
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`about others through their curricula.” Laura Baams et al., Comprehensive Sexuality
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`Education as a Longitudinal Predictor of LGBTQ Name-Calling and Perceived
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`Willingness to Intervene in School, 46 J. Youth Adolescence 931, 932 (2017). They
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`are a vital tool for promoting tolerance and for preparing students for citizenship
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`within the full diversity of the community. See Bethel Sch. Dist. No. 403 v. Fraser,
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`478 U.S. 675, 681–85 (1986); Parker v. Hurley, 514 F.3d 87, 106 (1st Cir. 2008).
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`Appellants seek to fundamentally distort these stories, suggesting that they are
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`a form of sexuality education, from which permitting opt outs is already required.
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`See Appellants’ Opening Br. at 25-26. While it is accurate that LGBTQ inclusion
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`in health education classes similarly promotes school climate and safety, see
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`Shannon D. Snapp et al., LGBTQ-inclusive curricula: why supportive curricula
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`matter, 15 Sex Education 580, 590 (2015), that is not the issue before this Court.
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`Appellants cannot colorably characterize the Storybooks as health or sexuality
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`education curricula, any more than Disney stories and fairy tales that portray the
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`familial ties between non-LGBTQ people are sexuality education. Appellants’
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`attempts to conflate the two exploit stereotypes that hyper-sexualize LGBTQ people
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`and reductively limit LGBTQ identity to sexuality in ways that are not done to those
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`with other identities.
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`Courts have recognized and rejected this double standard in schools for
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`decades, refusing to permit differential treatment of LGBTQ students and content
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`based on these impermissible stereotypes. See, e.g., Gonzalez Through Gonzalez v.
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`Sch. Bd. of Okeechobee Cnty., 571 F. Supp. 2d 1257, 1266–67 (S.D. Fla. 2008)
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`(rejecting the notion that “a club whose stated purpose is to promote tolerance
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`towards non-heterosexuals within the student body promotes the premature
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`sexualization of students”); Colin ex rel. Colin v. Orange Unified Sch. Dist., 83 F.
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`Supp. 2d 1135, 1148 (C.D. Cal. 2000) (requirement that only gay student group must
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`state that it would not talk about sexual activities at its meetings validated
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`stereotypes that “gay people are inherently more sexual than others” even though
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`you can “talk about being gay without having to talk about sex, just as you can t