In a dissenting opinion to the Supreme Court’s refusal to hear a case about a school’s policy supporting transgender students, Justices Samuel Alito and Clarence Thomas said that the Court should have heard the case and claimed that the school’s policy to not out trans kids to their parents kept the parents “in the dark about the ‘identities’ of their children.”

The case — Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin — is about the school district’s policy of supporting trans and gender non-conforming students on a case-by-case basis. The policy doesn’t ban teachers from outing students to their parents but it also doesn’t require them to. The policy, adopted in 2021, notes that there may be safety concerns when it comes to the parents of trans kids being informed about their identities.

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In their ruling, the court shut down a mother who claimed the district violated her “parental rights”.

A group of conservative parents sued, saying that their “parental authority” gives them the right to be told whatever teachers know about their kids’ identities so that they can “say no to children’s often short-sighted desires,” according to the petition they filed with the Supreme Court in June.

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The district court and the appellate court both rejected the parents’ lawsuit on a question of standing, since the parents couldn’t show that they had a trans kid in the school district and therefore couldn’t show that they were actually affected by the district’s policy.

Six Supreme Court justices rejected their petition in an unsigned order. Alito wrote a dissent and Thomas joined. Justice Brett Kavanaugh also dissented, but he didn’t join Alito’s dissenting opinion.

Alito’s dissent says the issue is schools that “encourage[] a student to transition to a new gender or assist[] in that process” “without parental knowledge or consent.” The policy at Eau Claire is not about encouraging students to transition since being transgender isn’t something that one can convince someone else to be.

Alito noted that the district’s policy had a plan for when parents aren’t involved in helping create a Gender Support Plan for their child and that the school’s training materials said, “Parents are not entitled to know their kids’ identities. That knowledge must be earned.”

Alito wrote that it’s not possible for the parents to know whether they had a trans child without the school telling them, which would mean that the possibility that their kids are trans is enough to have standing to sue.

“The challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the ‘identities’ of their children,” Alito wrote, using scare quotes around the word “identities.” Conservatives often oppose thinking of LGBTQ+ identities as such and instead insist that they are behaviors or mental illnesses.

“Thus, the parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative,'” he wrote.

Generally, Supreme Court justices don’t write opinions when refusing to hear cases, but this isn’t the first time that Alito and Thomas have done so on a case about LGBTQ+ issues. In 2020, when the Supreme Court refused a petition from Rowan County, Kentucky, clerk Kim Davis — who infamously refused to issue marriage licenses to same-sex couples after the Court legalized same-sex marriage in 2015 — Thomas and Alito signed a dissenting opinion saying that the Court should have used the opportunity to end marriage equality in the U.S.

Transgender youth make up an outsized percentage of homeless youth. The Trevor Project found that 28% of LGBTQ+ youth report being homeless at some point in their lives, and over 35% of trans and nonbinary youth reported the same. Many say that parental and familial rejection factors into their homelessness.

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