Judge approves suit against California's policy of hiding student gender transitions from parents

A California school district that ordered teachers to hide students' gender transitions from their parents, then passed the buck to the state when teachers sued, got cold comfort from a federal court Tuesday: You're both at fault.

U.S. District Judge Roger Benitez, nominated by President George W. Bush and repeatedly slurred by name by Democratic Gov. Gavin Newsom, denied motions to dismiss by the Escondido Union School District, Attorney General Rob Bonta, California State Board of Education and California Superintendent of Public Instruction Tony Thurmond.

The Supreme Court and 9th U.S. Circuit Court of Appeals "have clearly and unambiguously declared parents’ rights as they relate to their children," superseding California's policy that "subordinate[s]" parents' rights "to the child’s newly state-created right to privacy and the child’s right to be free from gender discrimination," Benitez wrote.

The Golden State can't point to any "controlling decisions that would compel this Court to limit or infringe parental rights" under the U.S. Constitution, which "must eclipse the state rights of the child," the jurist said, granting legal standing to all plaintiffs to sue.

The next day Ohio GOP Gov. Mike DeWine signed into law HB 8, the opposite of California policy, prohibiting schools from withholding students' gender transitions from parents. 

The Ohio Capital Journal dubbed it a "forced-outing" bill but the conservative Christian Alliance Defending Freedom, which has brought similar suits against what it calls "secret social transition" policies, praised HB 8 for "ensuring school officials do not hide crucial information from parents about their child’s mental health and well-being."

In California, EUSD teachers Elizabeth Mirabelli and Lori Ann West won a preliminary injunction from Benitez in September 2023 that barred the district and state from forcing them to deceive parents or taking "any adverse employment actions" against them. They returned to Benitez to force EUSD to follow his order when it still hadn't taken them off administrative leave months later.

The injunction set off a tug-of-war between branches of government, with several Bonta deputies directly threatening EUSD if it extended protections beyond Mirabelli and West to any teacher or parent, and Bonta twice telling districts to ignore "the reasoning" of Benitez's order, the teachers' Thomas More Society lawyers said in an amended complaint last summer.

Benitez noted Thurmond issued "at least one" threatening letter to a district that didn't comply, the California Department of Education sued a district to comply, and Bonta sued another for a countervailing "parental notice approach."

Last summer Newsom also signed into law AB 1955, which claims "existing law" already required districts to hide students' gender identities at odds with their sex from their parents. That "final straw" prompted Elon Musk to move his company SpaceX to Texas and transgender celebrity Caitlyn Jenner to celebrate Musk for his "strong move" for parental rights.

The amended complaint added new plaintiffs – two EUSD teachers who have taught transgender students and expected to teach more, and two sets of parents with "gender incongruent children" in California public schools, proceeding under pseudonyms due to what their lawyers called "severe harassment and retaliation" against Mirabelli and West.

The Lakeside Union School District, which was considering a "parental notification policy" at odds with state policy, also joined the suit, which now seeks class-action status to obtain relief for "similarly situated teachers, parents, and school districts."

Benitez made clear from the preliminary injunction that he considers social transitioning little different from a student's concussion, sexual assault or suicidal expressions, whose "significant, adverse, life-long social-emotional health consequences" legally require parental involvement. He cited high-profile transgender clinical psychologist Erica Anderson for support.

"Parents’ rights to make decisions concerning the care, custody, control, and medical care of their children is one of the oldest of the fundamental liberty interests that Americans enjoy," yet state policy and EUSD's implementation not only interferes with that power but is "in tension" with other parts of California education code, he said.

The state policy is based on a California Department of Education FAQ page, since replaced by AB 1955 guidance, which California told the court was "just a suggestion," in Benitez's words, to school districts and therefore incapable of harming the plaintiffs.

Benitez quoted those FAQs, which say disclosure "may violate California’s antidiscrimination law" and that children "as early as age two are expressing a different gender identity." He noted EUSD said "the state forced it to adopt the policy," under which teachers who resist are deemed "to have engaged in discriminatory harassment" and can be punished.

One of the couples alleged "substantial injury" from the policy, the judge said: Their daughter started identifying as a boy at school, even becoming "president of her school’s LGBTQ club," yet teachers used her legal name and "birth gender biological pronouns" with her parents. 

They said they only learned about her identity from a doctor after her suicide attempt, and that "teachers’ written letters and emails" show the school lied to them when they asked if she was being "called by a different name," Benitez wrote. When they moved her to a charter school, the parents said an administrator refused to tell them if she was presenting as a boy.

The other couple said their "child has repeatedly transitioned to and desisted from a transgender identity," according to the judge, yet the public school, in their words, "has repeatedly directly lied to them and refused to answer their questions," citing the state FAQs.

The new pseudonymous teacher plaintiffs have a "plausibly high" likelihood of being assigned future students with a gender identity at odds with sex, and the policy and EUSD implementation will allegedly require them "to deceive and mislead" parents who ask the question head-on as well as violate their religious beliefs or expose them to punishment for noncompliance, the judge said.

Though Mirabelli and West aren't currently teaching, they allegedly suffered past injuries and "intend to teach in the future where the same policies will likely impose similar injuries," he said.

Benitez – whom Newson called an "extremist, right-wing zealot" in an unrelated gun-rights case years ago – dismissed the state board of education members' attempt to "distance themselves from responsibility for the Department of Education’s FAQs and their enforcement," noting they have authority under state law to decide policy and the superintendent executes it. 

Bonta has also not "disavowed enforcement" in other school districts in which parent plaintiffs are suffering injury or likely to do so, and he's wrong to claim that nondisclosure to parents "will not tangibly interfere" with their constitutional rights, the judge said. 

The attorney general argued that he sued Chino Valley Unified School District because of its policy of "mandatory disclosure" and that "something less than" that won't be prosecuted. "This distinction draws too fine a line" for parents' legal standing purposes, Benitez said.