It appears that the legal battle that California Attorney General Rob Bonta and his political allies in Sacramento have waged against a four-fifths majority of the Chino Valley Unified School District Board of Trustees over a policy the district put in place in the Summer of 2023 mandating that district teachers notify parents when their children assume a gender different from the one assigned them at birth has been decided in a way that, essentially, allows the policy to be applied.
Ultimately, the question of whether the parents of students in California’s public schools have a right to know whether their children are manifesting gender incongruence in a classroom setting and if teachers are at liberty, or can be constrained by the state, to prevent parents from learning they are donning a sexual identity at a variance with their biology is a matter that will be decided in a separate but somewhat related lawsuit brought against the State of California by the district.
On July 20, 2023, with Board President Sonja Shaw and board members James Na, Andrew Cruz and Jon Monroe prevailing and Board Member Don Bridge dissenting, the board voted to adopt that policy, doing so over the objections of both California Superintendent of Public Instruction Tony Thurmond, who had flown down from Sacramento to attend the meeting, and Bonta, who had expressed his opposition to the policy in a letter.
Thurmond and Bonta 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.
Less than six weeks after the Chino Valley School Board’s 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 the attorney general. 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.
Of note, Shaw, Na, Cruz and Monroe are Republicans. Bonta and Thurmond are Democrats, as are the governor and all of California’s constitutional state elected officials and more than two thirds of both houses of the California legislature, the California Senate and California Assembly. Positions with regard to parental notification broke along partisan lines, with Republicans in favor and Democrats, the overwhelming ruling majority statewide, opposed to the concept and practice. It was only in the relatively rare Republican enclaves and bastions around the state or in areas where the GOP had outhustled their Democrat counterparts to take control of local governance and jurisdictions, such as in the Chino Valley Unified School District, where the parental notification policy existed.
The state’s Democrats, miffed with the Chino Valley Unified School District and a handful of other districts throughout the state such as those in Orange, Temecula Valley and Murrietta Valley that had adopted similar polices, 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 Rae 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.
In the meantime, the legal action filed by Bonta against the district on August 28, 2023 proceeded.
On September 9, 2024, Judge Sachs entered a ruling in that case which by that point had been expanded to consider the more general policy passed by the district in March 2024 that omitted mention of sexuality or gender but mandated parental notification a student made any alteration of his or her school registration records, such as altering his or her name. Sachs in his ruling upheld his previous ruling with regard to the district’s original disclosure policy, restating that the students had basic privacy rights and under the equal protection under the law principle guiding the application of the U.S. Constitution that students, despite their status as minors, could not be forced to forced to surrendering their privacy rights in the face of the policy passed in July 2023. Sachs stated, “While parents do have fundamental rights with respect to the care, custody, and control over children and while in many cases those right trump the rights of the child, invalidation of the Old Policy does not infringe upon those rights. There is no forced secrecy in this case; parents are still free to have conversations with their child about gender identity; and parents have the right to observe a classroom, talk to a teacher, and review educational records.”
At the same time, however, Sachs the district was at liberty to “create a gender and gender-identity neutral opt-in notification policy. Furthermore, even if the invalidation of the [district’s original] policy can still be seen as infringing upon parental rights, the Court cannot completely disregard the equal protection rights.”
While acknowledging there was a fundamental conflict between parents’ rights and the rights of students, Judge Sachs laid down the rationale for his eventual ruling that some order of balancing of the rights could be made or that a policy could be formulated that did not hinge on denying one set of parties’ rights to uphold the rights of another set of parties.
Judge Sachs stated in his September 9, 2024 ruling that “as is the case here… there are less restrictive alternatives that better balance the competing interests. Finally, as noted above, simply because fundamental parental rights are involved does not mean the parental rights absolutely control without any consideration for the equal protection rights, especially where, as is the case here, both interests can be advanced via a different policy.”
With regard to the revamped policy the school board adopted in March 2024, Judge Sachs found that parents have an unfettered right to review their children’s school records. He rejected Bonta’s contention that because the district had fashioned the revamped policy as a way to work around the restriction against informing parents that their child was assuming a sexual identity at odds with their birth gender, which restriction remained in place, that codifying that right into a policy and then enforcing that policy should not be allowed. He rejected the State of California’s contention that the revamped policy should be declared unlawful.
“As the court previously concluded, section l.(c) [pertaining to informing parents of a change in a student’s official records] is neutral and passes rational basis,” Judge Sachs wrote. “The State nevertheless argues that although the section is neutral on its face, it was enacted with the same animus as sections l.(a) and 1.(b). However. the stated purpose of the policy should be accepted and it is only ‘when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of ‘the legislation’ that the court ‘need not in equal protection cases accept at face value assertions of legislative purposes.’ While there is certainly evidence that could suggest section 1.(c) was intended to serve the same purpose as sections 1.(a) and 1.(b), the evidence is not enough to show a triable issue that section 1.(c) ‘could not have been’ included to promote the other facially neutral goals of ‘the old policy.’”
Judge Sachs opined that a student had a right to keep his or her gender reidentification confidential but nevertheless indicated that a parent learning of a student’s gender reidentification, did not constitute an egregious invasion of such a student’s privacy rights.
“Minor students have a right to privacy as it relates to the information that would be disclosed under the policy,” Judge Sachs wrote. “However, there is no reasonable expectation of privacy under the circumstances contemplated by the policy nor does mandated disclosure constitute a serious invasion as it relates to disclosures to parents/guardians.”
Moreover, Judge Sachs, without being drawn into an explicit exposition on the impracticality of students transitioning from one gender to another in the setting of a public forum such as a school and expecting that their parents will not learn about their action, indicated that people in general, including employees of the school district, cannot be enjoined from informing parents about what they have witnessed in a public space and that by openly transition gender in public a student, as a practical matter, waives any expectation of privacy with regard to his/her gender reidentification.
“Children should generally not expect that school staff will keep secrets in general, keep requests made to them secret from parents, or keep secret from parents public (at school) information about a child given the fundamental rights of parents, parents’ corresponding legal obligations, the in loco parentis status of staff, the rights outlined under Education Code section 51 101 (which if exercised would likely lead to disclosure and which shows a superior parental right over records/information), the public nature of social transitioning (which occurs in the context of the policy even in the view of those outside the student’s inner circle), the relatively recent rise of social transitioning for children, deductions or findings parents can make from their own observations and control of the child or discussions with friends and family, and the student’s ability to avoid disclosure.”
Judge Sachs, making a finding that “the undisputed facts indicate the old policy and regulation were replaced with the new ones,” made a ruling, as requested by Bonta and the rest of the state’s officials, that the district was enjoined from enforcing the policy as originally framed in July 2023 but that the that the terms of the original policy remaining in the updated policy adopted in March 2024 – specifically that parents must be notified if children request to change their official or unofficial school records, regardless of the reason for those changes – were constitutional and could not be enjoined.
Neither Bonta on behalf of the attorney general’s office and the state nor Rae or anyone from the Liberty Justice Center on behalf of the school district appealed Judge Sach’s ruling. Both sides have declared victory with regard to the matter, with Bonta’s office maintaining that its 2023 lawsuit in San Bernardino County Superior Court has settled that students’ constitutional privacy rights trump any rules imposed to mandate parental disclosure with regard to juvenile gender transitioning and the Liberty Justice Center claiming “Because Attorney General Bonta did not appeal the court’s decision by the legal deadline to do so, the case has formally closed. Therefore, in a victory for parents’ rights, the Chino Valley Unified School District may continue to enforce its updated parental notification policy.”
In actuality, the issue of parental notification with regard to gender transitioning students has yet to be settled, as Chino Valley Unified School District v. Newsom filed in the United States District Court for the Eastern District of California on July 16, 2024, which explores that topic and in which the district is being represented by Rae and the Liberty Justice Center, is yet pending.