A second San Bernardino Superior Court judge has entered a ruling blocking the Chino Valley Unified School District’s policy, put into place this summer, requiring the notification of parents whose children are assuming an identify that deviates from the gender on their birth certificates.
On October 19, San Bernardino County Superior Court Judge Michael Sachs granted the California Attorney General’s Office’s request for a preliminary injunction that prevents the Chino Valley Unified School District from implementing the essential elements of the parental notification policy the school board passed by a 4-to-1 vote on July 20.
The policy, which was strongly endorsed by parents in the district and passionately opposed by advocates of the lesbian-gay-bisexual-transsexual-queer community, mandated that the district’s faculty notify the parents of a child in writing within three days if he or she reidentifies his or her gender, which is defined by the student changing pronouns, names or seeking to use a gender-based changing room, locker room or restrooms for a gender different than the one assigned that child at birth. The policy further requires parental notification when a student tells faculty or a counselor about any violence he or she has experienced or of any contemplation of suicide.
In ratifying the policy, which was virtually identical to one outlined in an Assembly bill introduced by Republican Assemblyman Bilal Essayli earlier this year that failed to make it out of committee in the Democrat-controlled state legislature, defied, in addition to LGBTQ advocates, a powerful swathe of California’s political establishment.
On July 20, California Superintendent of Public Schools Tony Thurmond sojourned to Chino from Sacramento to be on hand at the Don Lugo High School Auditorium where the Chino Valley Unified School District Board met to accommodate an over-capacity crowd intent on weighing in on the policy. Thurmond, a Democrat, inveighed against the guideline, stating that “nearly half of students who identify as being LBGTQ+ are considering suicide.” He said the policy would put transgender students who have parents unwilling to accept their gender identification at risk.
That same day, just prior to the meeting, California Attorney General Rob Bonta, another Democrat, dashed off a letter to the school board in which he offered his opinion that the notification policy might intrude on students’ privacy rights and otherwise interfere with educational access. Students individually have the right and discretion to determine under what circumstances and when they should make disclosure of their gender identity and to whom, Bonta insisted. He vowed that his office would act to see that right is upheld.
Over those objections, the school board approved the policy.
On August 28, Bonta in his capacity as state attorney general filed suit against the Chino Valley Unified School District to stop enforcement of the mandated notification policy. Bonta asserted that the need to prevent “mental harm, emotional harm and physical harm” to those students who are products of families who are not accepting of their choice to deviate from their birth or biological gender trumps the right of all parents to be informed of their children’s identity choice. “This policy is destructive,” he said. “It’s discriminatory and it’s downright dangerous. It has no place in California, which is why we have moved in court to strike it down.”
The suit, filed in San Bernardino County Superior Court, asserted that the policy “has placed transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures.” Transgender students, as a consequence of the school district action were, according to Bonta, “under threat’’ and “in fear,” facing “the risk of emotional, physical, and psychological harm from non-affirming or unaccepting parents or guardians.”
Bonta charged that the policy “unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical.”
On September 6, San Bernardino County Superior Court Judge Thomas Garza granted the State of California a temporary restraining order prohibiting the Chino Valley Unified School District from enforcing the policy. In doing so, Judge Garza signaled that the court was favorably predisposed toward Bonta’s position when he suggested the rights with regard to gender transitioning were as basic to the U.S. and California constitutions as religious freedom when he analogized changing from one gender to another to making a religious conversion, while stating that under his analysis, Chino Valley Unified’s Policy 5020.1 qualified as being “too broad, too general” while lacking “clear purpose or reference of parental support and involvement.”
Despite the Chino Valley Unified School Board majority being outmuscled politically and legally, as well as being outmaneuvered in terms of the presentation of its position to the public within the popular media at virtually every turn, there were developments to suggest the policy might withstand the efforts to resist it.
Judge Garza acknowledged on September 6 that it was not likely that the matter would be resolved in San Bernardino County Superior Court and that whatever ruling came about at the trial court level would be appealed to the appellate court, the California Supreme Court and possibly to the U.S. Supreme Court.
While Bonta and other California officials had hoped that the legal challenge would force the district, which is in large measure dependent upon the state for its funding, to expend money to defend against the suit and would therefore simply rescind the policy to avoid having to make hefty outlays to employ lawyers in making that legal defense, the Chicago-based Liberty Justice Center has agreed to represent the district for the nominal fee of $1. That has eliminated the financial burden the district would have to bear, which allows it to concentrate fully on defending the policy on the basis of the policy alone and not against the artificial charge that it is squandering money that would otherwise be spent on education.
The Chino Valley Unified School District board majority has received support from other district boards, as well.
To date, no fewer than seven other districts – Dry Creek Joint Elementary School District, Rocklin Unified School District, Orange Unified School District, Murrieta Valley School District, Anderson Union High School District, Temecula Valley Unified School District and Placentia-Yorba Linda Unified School District – have passed policies identical or essentially indistinguishable from the one in Chino Valley. At least eight other districts in California are in the discussion phase about adopting similar policies, subject to a vote of their boards.
Perhaps most significantly, a ruling handed down in a federal court case in Southern California relating precisely to the issue of parental notification with regard to students involved in transgenderism appears to favor the district policy.
In April, Escondido Union School District middle school teachers Elizabeth Mirabelli and Lori Ann West filed suit in the U.S. District Court for the Southern District of California against the Escondido Union School District Board of Education, the California State Board of Education, the California Department of Education and State Superintendent of Schools Tony Thurmond over a district policy which requires teachers to use “any pronouns or a gender-specific name requested by the student during school, while reverting to biological pronouns and legal names when speaking with parents in order to actively hide information about their child’s gender identity from them.”
Mirabelli and West contend in the suit that their First Amendment rights were violated by the district in its requirement that they lie to parents.
Mirabelli and West presented evidence to show that that school staff and teachers at the school where they taught were provided with lists of students that essentially revealed which students at the school had changed gender, as those lists provided the names and pronouns teachers should use when dealing with the students in the educational setting and the other names to use when communicating with parents. This demonstrated that the district itself, through its policy, was violating the principle of confidentiality and privacy that the district said was the rationale for the policy. While teachers were being freely and openly informed of the student’s gender identification, the lists showed many, or most, parents were unaware of their students’ preferred names and pronouns.
In a ruling with regard to Mirabelli’s and West’s suit issued September 14, Senior United States District Judge Roger Benitez wrote, “A parent’s right 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” before concluding that Mirabelli’s and West’s free speech rights were violated by the Escondido Union School District’s policy. Judge Benitez wrote that students in the position of being caught between attending school using one gender identity while maintaining a different gender identity at home would be harmed by the district’s nondisclosure policy because they need “parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. Parental involvement is essential to the healthy maturation of schoolchildren. The Escondido Union School District has adopted a policy without parent input that places a communication barrier between parents and teachers.”
Judge Benitez granted Mirabelli and West a preliminary injunction against the district policy.
Yesterday, Judge Michael Sachs ruled the policy’s first two provisions calling for parents to be informed of their gender reidentification were discriminatory based on sex, and thus violated the Constitution’s equal protection clause.
Emily Rae, senior counsel with the Liberty Justice Center and the lead attorney representing the district, asserted that the third provision of the policy, that pertaining to parental disclosure with regard to a student seeking mental health services or protection from violence, related to information parents had an indisputable right to.
“It’s not a matter of discriminating based on gender,” Rae said. “It’s a matter of notifying parents when a student asks a government entity, or a school district, for treatment.”
Judge Sachs concurred on that singular point.
With respect to the third provision of the policy relating to informing parents about a student’s seeking of mental health or suicide prevention counseling, the information in question qualifies as being, in Judge Sachs’ terminology, “neutral facing” since it applies to all students, not just those seeking accommodations to comply with their proclaimed gender transformation.
Judge Sachs’ ruling is not permanently binding, and the matter is yet on a trajectory to advance to trial. The date of that trial will likely be set at a hearing to be held on February 26, 2024.
-Mark Gutglueck