Whether a court can rely on a probable alternative explanation at the 12(b)(6) stage to dismiss a claim, and whether a parent's fundamental constitutional rights include the right to be notified when public schools affirmatively recognize and facilitate a child's gender transition

In December 2022, Petitioner discovered a chest binder in her 13-year-old child’s room. After speaking with her child, she learned that a social worker at her child’s public school had given her child the binder and that others had “socially transitioned” the child by using a different name and pronouns. No one from the school informed Petitioner of these decisions, and despite a written policy requiring parental involvement in such decisions, school officials have repeatedly said that school staff violated no policy by withholding this information. Petitioner sued the School Board, alleging the existence of an unwritten policy allowing employees to make these decisions without informing parents, which violated Petitioner’s fundamental right to control and direct the education and upbringing of her child. The First Circuit dismissed Petitioner’s claims, however, determining that there was a more probable “alternative explanation” than the existence of an unwritten policy. In doing so, the court widened an entrenched circuit split over the application of the Twombly /Iqbal “plausibility” requirement. The questions presented are: 1. Whether a court can rely on a probable alternative explanation at the 12(b)(6) stage to dismiss a claim, as five circuits hold, or whether a complaint can only be dismissed if the plaintiff’s explanation is itself implausible, as three circuits hold. 2. Whether a parent’s fundamental constitutional rights include the right to be notified when public schools affirmatively recognize and facilitate a child’s gendertransition.