Federal Judge Puts California Officials’ Disallowance Of Parent Notification Into Doubt

A federal judge has entered a ruling that brings into question whether California state law and the efforts by Governor Gavin Newsom, California Attorney General Rob Bonta and California Superintendent of Public Instruction Tony Thurmond prohibiting teachers and other school district officials from informing parents when their children are assuming a gender identification at school that is different from their birth or biological gender will pass constitutional muster.
The ruling by Federal District Court Judge for the Southern District of California Roger Benitez that was entered on January 7 in a fundamental way boosts the prospects of the Chino Valley Unified School District in its legal battle with Bonta over a policy the district put in place in the Summer of 2023 mandating that district teachers notify parents when their children are manifesting gender incongruence, i.e., assuming a gender different from the one assigned them at birth.
The board voted 4-to-1 to adopt that policy, doing so over the objections of both Thurmond and Bonta. The state schools superintendent and the state attorney general have both consistently asserted that students have privacy rights which allow them to prevent their parents from knowing the identity they assume in a public school setting. Because some parents are unaccepting of any deviation from heterosexuality on the part of their offspring and some of those might or would engage in physical, psychological or emotional abuse of their children upon learning of their gender incongruence, Bonta and Thurmond maintain that revealing to parents how their children are comporting themselves at school, if that behavior includes a reidentification of gender, would be, in Bonta’s words, “discriminatory and downright dangerous.” Asserting that “nearly half of students who identify as being LBGTQ+ [lesbian, bisexual, gay, transsexual, queer plus other non-heterosexual orientations] are considering suicide,” Thurmond suggested that students alone had the right to determine when and to whom they were to disclose their gender reidentification.A little more than a month after the Chino Valley School Board’s July 20, 2023 adoption of the policy, just as the 2023-24 school year was getting underway, on August 28, 2023, Bonta, acting in his capacity as California Attorney General, filed a civil suit against the Chino Valley Unified School District, petitioning the San Bernardino County Superior Court to stop enforcement of the 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… has no place in California. It has put transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures,” according to Bonta. 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.” The policy, he said, “unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical.”
On September 6, 2023, 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.
After Judge Garza’s consideration of the early motions made with regard to the case, the matter was transferred to the courtroom of Judge Michael Sachs. Judge Sachs, reacting to Bonta’s claim that the district’s forced disclosure provisions discriminate against transgender students who are “singled out” and that it ran afoul of California Education Code Sections 200 and 220 and Government Code section 11135 meant to ensure equal rights and opportunities for every student and prohibit discrimination on the basis of gender identity and gender expression, perpetuated the restraining order preventing the policy’s enforcement. According to Judge Sachs, the provision of the policy requiring that faculty in essence “out” transgender students to their parents was discriminatory based on sex, violating both the California Constitution’ and U.S Constitution’s equal protection clauses.
The district and its board backed up and regrouped, and in March 2024 passed a redrafted parental notification requirement that was more general and did not make any specific mention of sexuality or gender, instead requiring that parents be told if the students made any alteration of their school registration records, such as altering their names. As most students engaging in “gender transition” adopt a name traditionally associated with the gender they are adopting, the revamped policy was inclusive of the intent contained in the policy adopted in July 2023 but maneuvered around the legal constraints Bonta, Thurmond and Newsom were attempting to construct.
State officials then moved to preempt parental disclosure altogether by having Assembly Member Chris Ward, D-San Diego, author AB 1955, prohibiting schools from making a practice of notifying parents if their children are assuming a gender different from the one assigned them at birth. The bill was passed by both of California’s legislative houses and was signed into law by Governor Newsom on Monday, July 15, 2024.
Almost as soon as Governor Newsom’s signature was dry, the Chino Valley Unified School District and parents Oscar Avila, Monica Botts, Jason Craig, Kristi Hays, Cole Mann, Victor Romero, Gheorghe Rosca, Jr. and Leslie Sawyer, represented by attorney Emily Ray of the Austin, Texas-based Liberty Justice Center, sued Newsom, California Attorney General Rob Bonta and California Superintendent of Public Instruction Tony Thurmond in an effort to prevent the enforcement of AB 1955.
As this legal back-and-forth has been raging in state court, a federal lawsuit, Mirabelli vs. Olson, with implications that not only parallel the issues of contention between Bonta and the Chino Valley Unified School District but replicate them with some level of specificity, is playing out.
In April 2023, Elizabeth Mirabelli and Lori Ann West, middle school teachers in Escondido in San Diego County, represented by the Thomas More Society, a Chicago-based public interest law firm, 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 required them to dissemble and outright mislead parents when they face a situation in which students have assumed a gender at a variance with their natural sex. Eventually, anonymous plaintiffs Jane Boe and Jane Roe, two other teachers in the district, and John and Jane Doe and John and Jane Poe, the parents of school-age students in the Escondido Union School District, joined with Mirabelli and West as plaintiffs in the suit. Mark Olson is the president of the Escondido Union School District Board of Education. Thus the short title of that litigation is Mirabelli vs. Olson.
The Mirabelli vs. Olson lawsuit stated teachers were required 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 contended in the suit that their First Amendment rights were violated by the district in its requirement that they either lie to parents outright or prevent the parents from learning the truth.
Judge Roger Benitez is the federal magistrate hearing the case in the United States District Court for the Southern District of California in San Diego.
In September 2023, Judge Benitez entered a finding that the teachers’ religious beliefs and free speech rights were violated by the Escondido Union School District’s policy, and 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 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.”
The court granted Mirabelli and West a preliminary injunction against the district policy.
Revealed during the course of Mirabelli’s and West’s litigation was that school staff and teachers at the school where they taught were sharing with one another 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. One exhibit presented in the Mirabelli vs Olson case, a 2022 email, demonstrated many parents were unaware of their students’ preferred names and pronouns.
In his response to Mirabelli’s and West’s contentions, Bonta adhered primarily to the position he had taken in the cases involving the Chino Valley Unified School District in which he is both a plaintiff and a defendant, maintaining that an open disclosure policy is potentially harmful to children who are transitioning their gender and that a school district maintaining a stance of protecting the privacy of students will shield them from harm.
Bonta made a series of motions to dismiss the entirety of the Mirabelli v. Olson case, arguing that the Escondido School District’s parental exclusion policies were merely “a suggestion” and had therefore not harmed the teacher-and-parent plaintiffs and that the plaintiffs had not adequately alleged that parents’ constitutional rights were violated.
Judge Benitez, however, in his written order, found that all of the plaintiffs in Mirabelli v. Olson have standing and “have stated plausible claims upon which relief can be granted” by the court. “The Supreme Court has long recognized that parents hold a federal constitutional due process right to direct the heath care and education of their children,” Judge Benitez wrote in his order denying the motions to dismiss.

According to Judge Benitez, the restrictions on informing parents about the comportment of their children while in school originated with the State of California, specifically the California State Board of Education and the California Superintendent of Public Instruction and the Attorney General of California. “The gravamen of the state policy is that public school teachers are not to reveal to parents a student’s announced change of gender identity in order to maintain the student’s privacy, except where the student consents to disclosure,” Judge Benitez wrote. “The local school district defendants say that the state forced it to adopt the policy. The defendant State Superintendent of Public Instruction has issued at least one threatening letter to a school district demanding the policy be followed. The defendant Department of Education has filed suit against a school district in Rocklin, California to enforce the policy. The defendant Attorney General has sued a school district in Chino Valley, California contending the school district’s parental notice approach violates the state’s policy.”
According to Judge Benitez, a serious health condition of a child is a matter over which parents have a federal constitutional right and duty to decide how to treat, or whether to treat at all, at any given time. “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,” Judge Benitez wrote. “However, under California state policy and Escondido Union School District policy, if a school student expresses words or actions during class that are visible signs that the child is dealing with gender incongruity or possibly gender dysphoria, teachers are ordered not to inform the parents. The plaintiff parents allege that they have been harmed by the State Department of Education policy imposed on local school districts. The plaintiff parents allege that they have children who expressed gender incongruence while attending public schools. Each of the plaintiff parents allege that they asked questions about their child and schoolteachers and administrators intentionally deceived them and did not disclose the truth about their child’s gender incongruence. The plaintiff parents allege that they are likely to be deceived in the future by public school teachers and administrators due to the State Department of Education non-disclosure policy.”
Judge Benitez continued, “Per the policies of the State Department of Education and Escondido Union School District, once a student expresses a desire to be publicly called by a new gender incongruent name or pronoun, school faculty and staff are to refer to that student by the incongruent name. From that point forward, the student may go through each school day with the faculty and staff addressing the student according to the changed moniker. However, under the antidiscrimination policy, a teacher is not permitted to inform the parents of this name change without the student’s consent.”
Judge Benitez noted that Thurmond contends that the plaintiffs had no standing to proceed with their suit because they had not suffered any harm. Benitez pointed out that in the case of the Poes, their child was engaging in gender nonconformity at school and had become the president of the school lesbian bisexual transsexual queer club. When the Poes attended a back-to-school night and met with their child’s teachers, none of the teachers said anything about their child presenting as a different gender at school, wanting to use a different name or pronoun, or that their child was president of the school lesbian bisexual transsexual queer club, according to Judge Benitez. In their interaction with the Poes, the teachers referred to the Poes’ child by her legal name and her birth gender biological pronouns, not the new name and pronouns being used in school, the judge said, pointing out that it was only after their child attempted suicide that a physician told the Poes that their daughter was identifying as a boy. When the Poes contacted the school to ask if their child was being called by a different name, officials at the school falsely told them “No,” according to the judge.
According to the judge, the Doe parents have a child who attends public schools who has repeatedly transitioned to and desisted from a transgender identity. The Does allege that their child’s public school repeatedly directly lied to them and refused to answer their questions, citing the State Department of Education’s guidance on gender identity.
“These allegations sufficiently describe facts that the Poes and the Does have suffered an actual injury that is concrete and particularized,” Judge Benitez wrote.
Judge Benitez rejected Thurmond’s contention the teachers did not have standing because the two newly added teachers, Jane Roe and Jane Boe, had not lodged an allegation of an injury-in-fact and that Miribelli and West are no longer teaching, stating that Mirabelli and West have intentions of returning to the teaching profession and that the teachers face the future probability of having to lie to parents of any gender nonconforming students in their classrooms.
“While the government may hire teachers to deliver prescribed curricular speech, it may not compel its employees to do so in a way that intentionally abridges parental constitutional rights or in a manner that is unlawful,” Judge Benitez wrote. “The teacher plaintiffs allege that the state and Escondido Union School District policies compel them to abridge parental constitutional rights and to do so in a manner that is intentionally deceptive and unlawful. These allegations fairly state a plausible claim for relief that the policies infringe on the teachers’ own constitutional rights under the First Amendment Free Speech Clause the state defendants assert, that parents ‘do not have a fundamental right to be informed of their students’ gender identity at school, and accommodating a student’s social transition at school is not medical care triggering any right to parental involvement.’ This cramped definition of parental rights is conclusory and requires the suspension of disbelief. Constitutional rights of parents to bring up a child and decide how to handle health care issues are some of America’s oldest foundational rights.”
Judge Benitez then referenced an appellate court statement in the case of Troxel v. Granville that emphasized this point: “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
Judge Benitez stated, “This is especially true with regard to issues of health. And although the state defendants disagree, it easily follows that parents do have a constitutional right to be accurately informed by public school teachers about their student’s gender incongruity that could progress to gender dysphoria, depression, or suicidal ideation, because it is a matter of health.”
In this way, Judge Benitez opined, “The defendants’ policies do little to protect a parent’s interests in their child’s health. On the contrary, when on occasion these interests collide, the defendants’ policies promote the ascendancy of a child’s rights over the child’s parents. The Supreme Court’s precedents point the other way toward ‘permit[ting] the parents to retain a substantial, if not the dominant, role’ in a health care decision.”
Moreover, Judge Benitez in not so many words accused Governor Newsom, California Superintendent of Education Thurmond and Attorney General Bonta of making it up as they go along and then imputing greater authority to what they have made up than to long-established legal principle. Judge Benitez wrote, “The defendants stand on unprecedented and more recently created state law child rights to privacy and to be free from gender discrimination. These rights may compete when it comes to information about a child’s expressed gender incongruence in a public school. Parents have a right to know about their child’s gender expression at school. And a child has a right to keep gender expressions private and to be protected from discrimination. The Supreme Court and the Ninth Circuit have clearly and unambiguously declared parents’ rights as they relate to their children. There are no controlling decisions that would compel this court to limit or infringe parental rights, notwithstanding the state’s laudable goals of protecting children. This court concludes that, in a collision of rights as between parents and child, the long-recognized federal constitutional rights of parents must eclipse the state rights of the child. Therefore, the court finds that the plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied. Therefore, it is ordered that: All plaintiffs enjoy Article III standing. The motion to dismiss of the Superintendent of Public Instruction is denied. The motion to dismiss of the members of the Board of Education is denied. The Attorney General’s motion to dismiss is denied. The motion to dismiss of the Escondido Union School District Defendants is denied.”
Mark Gutglueck

Leave a Reply