In this photograph provided by Stephen Davis Phillips/Goldwater Institute, Amber Lavigne, of Newcastle, Maine, poses on March 25, 2023, at her home in Newcastle. Lavigne is suing a school district saying a counselor encouraged her teen's social gender transition without consulting her. The federal lawsuit argues parents' rights trump state statutes allowing school counselors to keep student gender and sexuality information private. Credit: Stephen Davis Phillips / AP

Maine’s top federal judge could dismiss a mother’s lawsuit against a Damariscotta school whose counselor encouraged her child’s social gender transition, which she alleges was done without her consultation.

Newcastle mother Amber Lavigne sued the Great Salt Bay Community School Board and school officials in early April. She claims a counselor provided her 13-year-old a chest binder, which is compression clothing meant to conceal breasts, and used a male name and pronouns for her child.

Lavigne alleges that the school violated her constitutional rights, but the school district has maintained that it did nothing illegal.

The federal lawsuit is Maine’s version of a dispute between parents and educators that is playing out nationwide. In many of the cases, parents argue for their right to oversee their child’s education and health, while districts say they are able to keep information about a student’s gender and sexuality private based on policies. 

Alabama and Florida are among states that have passed laws that prohibit schools from withholding information about gender identity from parents. 

During oral arguments in the Maine lawsuit earlier this week, U.S. District Judge Jon Levy did not rule on the school board’s motion to dismiss the case, which was filed June 2. He asked whether to halt legal proceedings until a decision is made in a similar lawsuit in Massachusetts.

The lawsuit argues for Lavigne’s “right to control and direct the care, custody, education, upbringing and health care decisions of her children,” and that Great Salt Bay Community School violated her constitutional right by concealing information about her teen’s transition.

The school is part of the Central Lincoln County School System, also known as Alternative Organizational Structure 93. It serves the towns of Bremen, Bristol, Damariscotta, Jefferson, Newcastle, Nobleboro and South Bristol.

Lavigne’s three children no longer attend the school, Brett Baber of Bangor law firm Lanham Blackwell & Baber told the Bangor Daily News in April.

The school board has a written policy that requires parental involvement at every stage of the process in dealing with transgender students, said Melissa Hewey of law firm Drummond Woodsum, which represents the defendant. Because such a policy exists, the claim of Lavigne’s attorneys that withholding information violates her rights cannot go forward, she told the BDN.

But Lavigne’s attorneys at the Goldwater Institute, an Arizona-based conservative and libertarian think tank, claim the defendants used an “unwritten policy” that intentionally withheld information from Lavigne about her child’s mental and physical wellbeing.

“My perspective is they know in order to go forward with a claim, they have to find a policy,” Hewey said Wednesday. “Since the written policy doesn’t say anything to give them a claim, they came up with an unwritten policy.”

If a school is going to give a chest binder or call a student by different pronouns, officials should tell the parents, Lavigne’s attorney Adam Shelton said. Parents need to be aware because the information helps them make the best decisions for their child, including where they go to school, he said.

“This is really a case about parental notice and not about larger transgender issues,” he told the BDN. “We’re hopeful when the judge looks at the facts and the law, and that he will come to the right decision.”

Hewey was pleased that Levy dismissed people from the lawsuit, which initially named the school board, Superintendent Lynsey Johnston, Principal Kim Schaff and social workers Samuel Roy and Jessica Berk as defendants.

“Schools need guidance as to what is permissible in this area,” she said. “There is no case law in Maine and very few around the country that deal with the issue of what schools do when parents and students disagree on issues like transgender status.”

Levy asked attorneys to submit citations by Nov. 8, and he is expected to make a decision about the lawsuit at a later date.