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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

Case No. 2022-0537

Citation: Doe v. Manchester Sch. Dist., 2024 N.H. 48

JANE DOE

v.

MANCHESTER SCHOOL DISTRICT & a.

Argued: April 27, 2023

Opinion Issued: August 30, 2024 

Lehmann Major List, PLLC, of Concord (Richard J. Lehmann on the brief 

and orally), for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (Demetrio F. Aspiras, 

III, Meghan S. Glynn, and James A. O’Shaughnessy on the brief, and Meghan 

S. Glynn orally), for the defendants.

GLBTQ Legal Advocates & Defenders, of Boston, Massachusetts (Chris 

Erchull and Mary Bonauto on the brief), and American Civil Liberties Union of 

New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. 

Klementowicz on the brief), for GLBTQ Legal Advocates & Defenders, American 
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Civil Liberties Union of New Hampshire Foundation, American Medical 

Association, Heather Romeri, Nico Romeri, Andres Mejia, Rachel Blansett, 

Quinci Worthey, New Hampshire Medical Society, New Hampshire Academy of 

Family Physicians, New Hampshire Pediatric Society, New Hampshire

Psychiatric Society, Unitarian Universalist Action New Hampshire, New 

Hampshire Council of Churches, Jason Wells, Kali Fyre, Marjorie Gerbracht, 

Sarah Rockwell, Bob Stewart, Elsa Worth, Jay MacLeod, GLSEN, Inc., GLSEN 

New Hampshire, YWCA New Hampshire, Seacoast Outright, and 603 Equality, 

as amici curiae.

MACDONALD, C.J. 

[¶1] The plaintiff, Jane Doe, appeals a decision of the Superior Court 

(Messer, J.) dismissing her claims against the defendants, Manchester School 

District (the District) and School Administrative Unit #37, challenging the 

District’s transgender student policy. We affirm.

I. Background

[¶2] The plaintiff’s complaint alleges the following facts. On February 8, 

2021, the defendants adopted a policy titled “Transgender and Gender NonConforming Students.” (Bolding omitted.) They amended that policy on March 

14, 2022. As amended, the policy provides, in relevant part, as follows

(additions to the original language are shown in bold; deletions are indicated by 

strikethrough):

The Board recognizes a student’s right to keep private one’s 

transgender status or gender nonconforming presentation at 

school. Information about a student’s transgender status, legal 

name, or gender assigned at birth also may constitute confidential 

information. School personnel should not disclose information 

that may reveal a student’s transgender status or gender 

nonconforming presentation to others including parents and other 

school personnel, unless legally required to do so or unless the 

student has authorized such disclosure. Transgender and gender 

nonconforming students have the right to discuss and express 

their gender identity and expression openly and to decide when, 

with whom, and how much to share private information. Nothing 

herein shall be construed to change the obligation of the 

school to take action when student safety is concerned.

When contacting the parent or guardian of referring to a 
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transgender or gender nonconforming student, school personnel 

should use the student’s legal name and the pronoun 

corresponding to the student’s gender assigned at birth unless the 

student, parent, or guardian has specified otherwise. Any student 

who has a need or desire for increased privacy, regardless of the 

underlying reason, should be provided with a reasonable 

alternative to meet the need for that individual’s privacy, 

regardless of gender identity.

The plaintiff alleges that both the original and amended policies, which she 

appended to her complaint, “suffer the infirmities set forth in this Complaint.” 

Resolving this appeal does not require us to consider the original and amended 

policies separately; accordingly, we refer to both policies collectively as “the 

Policy.” 

[¶3] The plaintiff states that she is the parent of a minor child (M.C.)

enrolled in school in the District. In the fall of 2021, the plaintiff discovered,

through an inadvertent disclosure by a teacher, that M.C. had asked teachers 

and students to call M.C. by a name typically associated with a different gender 

than that assigned to M.C. at birth. The plaintiff informed M.C.’s guidance 

counselors and others at the school that “she would like the school to continue 

to treat M.C. according to M.C.’s birth gender, to address M.C. by . . . M.C.’s 

given name . . . , and to address M.C. using the pronouns that correspond to 

M.C.’s biological sex.”

[¶4] Initially, some of M.C.’s teachers indicated that they would respect 

the plaintiff’s wishes. Soon thereafter, however, the principal emailed the 

plaintiff and explained that while the principal respected and understood her 

“concern, we are held by the District policy as a staff.” The principal explained 

that, under the Policy, staff was required to call M.C. by M.C.’s desired name 

and could not “disclose a student’s choice to parents if asked not to.” 

[¶5] After receiving the principal’s email, the plaintiff “discussed issues 

related to gender expression, birth-name usage, and pronouns with M.C.” The 

plaintiff subsequently learned, through representations by both M.C. and 

school personnel, that M.C. asked school personnel to use M.C.’s birth name 

and pronouns and that school personnel were doing so. Nevertheless, the 

plaintiff alleged that “the continued existence of the Policy means that [she] 

cannot know whether representations by District personnel are factually true, 

or whether the District personnel are simply following the Policy by misleading 

and/or lying to [her] about M.C.’s in-school gender expression and the 

District’s response thereto.”

[¶6] In May 2022, the plaintiff brought the instant action seeking a 

declaratory judgment that the Policy violates Part I, Article 2 of the New 

Hampshire Constitution, both facially and as applied, is ultra vires, and 
4

violates both the federal Family Educational Rights and Privacy Act, 20 U.S.C. 

§ 1232g (2018) (FERPA), and the federal Protection of Pupil Rights Act, 20 

U.S.C. § 1232h (2018) (PPRA). In addition, the plaintiff sought temporary and 

permanent injunctions, nominal damages, and attorney’s fees.

[¶7] The defendants filed a motion to dismiss, which the trial court 

granted. With respect to the plaintiff’s constitutional claim, the court found 

that because the Policy did not infringe upon a fundamental right, strict 

scrutiny review was not warranted. The court then found, under the rational 

basis test, that the Policy was not unconstitutional. The court further found 

that the plaintiff failed to state a claim that the Policy was ultra vires, and the 

court determined that the Policy did not violate either FERPA or PPRA.

[¶8] The plaintiff appealed, initially raising in her notice of appeal the 

question whether the trial court erred in dismissing all counts of her 

complaint. Because she briefed only a challenge to the trial court’s ruling on 

her constitutional claim, we deem any challenge involving the other counts to 

be waived. See Fiske v. Warden, N.H. State Prison, 175 N.H. 526, 530 (2022).

 

II. Analysis

[¶9] The plaintiff appeals the trial court’s dismissal of both her facial and 

as-applied constitutional challenges to the Policy, arguing that the trial court 

erred in finding the Policy did not violate her “constitutional parenting rights.” 

The single question presented for our review asks: “Did the superior court err 

in dismissing the First Amended Complaint when it found that the Policy did 

not violate the plaintiff’s constitutional parenting rights, despite the allegation 

that the Policy encourages school officials to affirmatively conceal her child’s 

open and public gender identity transition in school from her?” 

[¶10] The plaintiff’s argument is based upon the State Constitution;

accordingly, we base our decision solely on the State Constitution and cite 

federal cases for guidance only. See State v. Ball, 124 N.H. 226, 231-33 (1983). 

In reviewing a trial court’s grant of a motion to dismiss, we consider whether 

the allegations in the plaintiff’s pleadings are reasonably susceptible of a 

construction that would permit recovery. Granite State Trade Sch. v. N.H.

Mechanical Licensing Bd., 175 N.H. 708, 710 (2023). We assume the plaintiff’s 

pleadings to be true and construe all reasonable inferences in the light most 

favorable to the plaintiff. Id. However, we need not assume the truth of 

statements in the plaintiff’s pleadings that are merely conclusions of law. Id. 

We then engage in a threshold inquiry that tests the facts in the complaint 

against the applicable law. Id. We will uphold the trial court’s grant of a 

motion to dismiss if the facts pleaded do not constitute a basis for legal relief. 

Id.
5

Part I, Article 2 of the New Hampshire Constitution provides:

All men have certain natural, essential, and inherent rights—among 

which are, the enjoying and defending life and liberty; acquiring, 

possessing, and protecting, property; and, in a word, of seeking and 

obtaining happiness. Equality of rights under the law shall not be 

denied or abridged by this state on account of race, creed, color, sex or 

national origin.

“We have long recognized the right to raise and care for one’s children as a 

fundamental liberty interest protected by Part I, Article 2 of the State 

Constitution.” In the Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003). 

“Similarly, United States Supreme Court precedent recognizes ‘that the Due 

Process Clause of the Fourteenth Amendment [to the Federal Constitution] 

protects the fundamental right of parents to make decisions concerning the 

care, custody, and control of their children.’” Id. (quoting Troxel v. Granville,

530 U.S. 57, 66 (2000) (plurality opinion)). “This judicial reluctance to interfere

with parental prerogatives derives, historically, from the notion that parents 

have a natural entitlement to the exclusive companionship, care, custody, and 

management of their children.” Id. at 547-48. “The right of parents to raise 

their children without interference is a fundamental liberty interest deserving 

of the highest level of protection.” Id. at 548. As we have recognized, the issue 

of infringement of parental rights implicates substantive due process. See In re 

J.H., 171 N.H. 40, 50-51 (2018) (addressing claimed infringement of parenting 

rights under substantive due process). 

[¶11] While we have not previously addressed the scope of the right to 

parent in the public school context, other courts have done so. For example,

the United States Court of Appeals for the Sixth Circuit has opined on the 

limits of the federal right in this context, observing that “while this right plainly 

extends to the public school setting, it is not an unqualified right.” Blau v. Fort 

Thomas Public School Dist., 401 F.3d 381, 395 (6th Cir. 2005) (citing Runyon 

v. McCrary, 427 U.S. 160, 177 (1976)). The court stated:

While parents may have a fundamental right to decide whether to send 

their child to a public school, they do not have a fundamental right 

generally to direct how a public school teaches their child. Whether it is 

the school curriculum, the hours of the school day, school discipline, the 

timing and content of examinations, the individuals hired to teach at the 

school, the extracurricular activities offered at the school or, as here, a 

dress code, these issues of public education are generally “committed to 

the control of state and local authorities.”

Id. at 395-96 (quoting Goss v. Lopez, 419 U.S. 565, 578 (1975)).

[¶12] The questions thus become what is the scope of the fundamental 

right to parent and how does the Policy implicate it. The dissent cites decisions 
6

from federal district courts in support of the plaintiff’s view. We believe these 

cases are inapposite to our task of resolving whether this particular policy is in 

conflict with the New Hampshire Constitution. In any event, we respectfully 

note that there appear to be differences among federal district courts in 

addressing cases such as this. See Doe v. Del. Valley Reg’l High Sch. Bd. of 

Educ., No. 24-00107, 2024 WL 706797, at *11 (D.N.J. Feb. 21, 2024) (finding 

that the United States Constitution does not mandate school districts to notify 

parents of a minor’s gender identity and receive consent before using 

alternative names and pronouns).

[¶13] Returning to New Hampshire law, our parental rights cases have 

involved severe intrusions on the most basic rights to the care and custody of a 

child, such as termination of parental rights, withholding of custody from a 

parent, and the granting of guardianship or custodial rights to a non-parent 

over a parent’s objection. See, e.g., In re Shannon M., 146 N.H. 22, 27 (2001) 

(agreeing that “[b]ecause parental rights are fundamental under the New 

Hampshire Constitution, the party seeking to terminate parental rights must 

prove the statutory ground for termination beyond a reasonable doubt” 

(quotation omitted)); In re J.H., 171 N.H. at 51 (noting that “requiring Father, a 

non-neglectful and presumptively fit parent, to demonstrate his compliance 

with conditions before the children can be returned to his custody violates his 

fundamental right to parent”); In re Guardianship of Nicholas P., 162 N.H. 199, 

200, 203, 205 (2011) (concluding that grant of guardianship to child’s halfbrother over mother’s objection did not violate mother’s parenting rights 

because the guardianship statute “safeguards a parent’s fundamental rights by 

imposing a high evidentiary standard — that is, by requiring a non-parent 

seeking a substitute guardianship to establish the need for it by clear and 

convincing evidence”); Nelson & Horsley, 149 N.H. at 549 (holding “that it 

would violate the fit natural or adoptive parent’s State constitutional rights to 

grant custodial rights to an unrelated third person over the express objection of 

that parent”).

[¶14] By its terms, the Policy does not directly implicate a parent’s ability 

to raise and care for his or her child. It encourages school personnel to not 

disclose information that may reveal a student’s transgender status, but

contrary to the principal’s assertion to the plaintiff, the Policy does not require

non-disclosure. Thus, even under the Policy, school personnel may disclose 

the information. Further, the Policy does not restrict a parent’s ability to learn 

information from other sources, including from the child. The Policy does not 

encourage students to hide information from their parents or prevent students 

from sharing information. The Policy does permit non-disclosure in response 

to a parent’s question seeking that information. However, as the trial court 

observed: 

[T]he Policy does not prevent parents from observing their children’s 

behavior, moods, and activities; talking to their children; providing 
7

religious or other education to their children; choosing where their 

children live and go to school; obtaining medical care and counseling for 

their children; monitoring their children’s communications on social 

media; choosing with whom their children may socialize; and deciding 

what their children may do in their free time. In short, the Policy places 

no limits on the plaintiff’s ability to parent her child as she sees fit. 

We cannot conclude that any interference with parental rights which may 

result from non-disclosure is of constitutional dimension. This potential 

interference stands in stark contrast, for example, to circumstances in which 

we have found the right to parent implicated where parental custody was in 

jeopardy. See Nelson & Horsley, 149 N.H. at 549. 

[¶15] Accordingly, the plaintiff has failed to demonstrate that the Policy 

infringes a fundamental parenting right protected by Part I, Article 2. It 

follows, then, that strict scrutiny review is inappropriate, and the trial court did 

not err by applying the rational basis test. See Petition of Whitman Operating 

Co., 174 N.H. 453, 462 (2021) (applying rational basis standard of review when 

no fundamental right or protected liberty interest is at stake). The plaintiff 

does not challenge the trial court’s finding that the Policy survives rational 

basis review, and, therefore, we do not disturb that finding. Moreover, because 

we read the court’s order to find that, under rational basis review, the Policy 

survives both the plaintiff’s facial and as-applied challenges, we need not 

address those challenges separately. 

[¶16] Finally, we observe that the parties in this case did not advocate for

a standard in their briefs by which we should analyze the potential expansion 

of existing substantive due process rights, or the existence of previously 

unrecognized substantive due process rights, under our State Constitution. 

We note that our present case law offers little guidance on this issue. In this 

case, we did not articulate a standard as it was unnecessary to resolve this 

appeal. We invite parties in future cases involving substantive due process 

rights to suggest a formulation of the standard to be applied under our State 

Constitution.

[¶17] For the foregoing reasons, we affirm the trial court’s order granting 

the defendants’ motion to dismiss.

 Affirmed.

BASSETT and DONOVAN, JJ., concurred; COUNTWAY, J., dissented; 

HICKS, J., sat for oral argument but did not participate in the final vote, see

N.H. CONST. pt. II, art. 78.
8

COUNTWAY, J. 

[¶18] Because I believe that strict scrutiny should be applied in this case, 

I respectfully dissent.

[¶19] This case involves a substantive due process challenge to a Policy, 

which, I believe, on its face, interferes with a parent’s fundamental right to 

parent. I believe that this case—which involves whether a public school may 

conceal from a child’s parent the child’s decision to identify as a gender other 

than that assigned at birth—implicates such a right. Cf. Tatel v. Mt. Lebanon 

Sch. Dist., 675 F. Supp. 3d 551, 569 (W.D. Pa. 2023) (noting that the schoolrelated defendants’ “alleged conduct implicates the violation of parental 

interests of the greatest importance about forming the gender identity of their 

children”); Ricard v. USD 475 Geary Cnty., KS Sch. Bd., No. 5:22-cv-04015-

HLT-GEB, 2022 WL 1471372, at *8 (D. Kan. May 9, 2022) (opining that “[i]t is 

difficult to envision why a school would even claim—much less how a school 

could establish—a generalized interest in withholding or concealing from the 

parents of minor children, information fundamental to a child’s identity, 

personhood, and mental and emotional well-being such as their preferred name 

and pronouns”).

[¶20] The Policy directs that, absent the child’s consent, “[s]chool 

personnel should not disclose information that may reveal a student’s 

transgender status or gender nonconforming presentation to others.” 

(Emphasis added.) Unlike the majority, I read this language to require school 

personnel to affirmatively conceal a child’s gender preferences from the child’s 

parent even if the parent asks for such information. According to the plaintiff’s 

complaint, even the school principal in this case interpreted the Policy this 

way, stating that under the Policy, staff was required to call M.C. by M.C.’s 

desired name and could not “disclose a student’s choice to parents if asked not 

to.” Because accurate information in response to parents’ inquiries about a 

child’s expressed gender identity is imperative to the parents’ ability to assist 

and guide their child, I conclude that a school’s withholding of such 

information implicates the parents’ fundamental right to raise and care for the 

child. Cf. Willey v. Sweetwater County School District No. 1, 680 F. Supp. 3d 

1250, 1277 (D. Wyo. 2023) (noting that “[t]o the extent [a school policy] 

prohibits a teacher or school employee, upon inquiry by a parent or legal 

guardian, from responding or providing accurate and complete information 

concerning their minor child (and absent a threat to the wellbeing of the 

student), it burdens a parent’s fundamental right to make decisions concerning 

the care, custody and education of their child”).

[¶21] “When dealing with legislative activity in the area of fundamental 

rights this court has applied the strict scrutiny test.” State v. Robert H., 118 

N.H. 713, 716 (1978), overruled on other grounds by In re Craig T., 147 N.H. 

739, 744-45 (2002). In Robert H., we applied strict scrutiny to the statutory 
9

scheme governing termination of parental rights because “[t]he family and the 

rights of parents over it are held to be natural, essential, and inherent rights 

within the meaning of New Hampshire Constitution, part I, article 2.” Id. In a 

subsequent, fractured opinion of this court, although the justices could not 

agree on a standard for grandparent visitation, they did agree, explicitly or 

implicitly, on the constitutional significance of parental rights and the 

application of strict scrutiny. See In the Matter of R.A. & J.M., 153 N.H. 82,

95, 110, 114 (2005). Because the Policy burdens parents’ fundamental right 

“to make decisions concerning the care, custody and education of their 

child[ren],” Willey, 680 F. Supp. 3d at 1277, I further conclude that our 

precedents dictate the application of strict scrutiny and that the trial court 

erred in dismissing the plaintiff’s constitutional claim. Accordingly, I 

respectfully dissent.