In a sharp rebuke to a coterie of California’s most powerful politicians, a federal judge last month struck down California school policies that prevented teachers from informing the parents of their students’ assumption of a gender identity at a variance with that assigned them as a consequence of their outward biology at birth.
U.S. District Judge Roger T. Benitez’s 52-page decision and order issued on December 22 declared so-called “parental exclusion policies,” which predominate in California’s schools and which have been embraced and touted by Governor Gavin Newsom, California Attorney General Rob Bonta, California Superintendent of Public Instruction Tony Thurmond and with only three exceptions all Democrats in the state legislature, to be unconstitutional and an inherent violation of parents’ rights.
Judge Benitiez’s ruling further vindicated efforts by nearly a dozen school districts around the state, including two in San Bernardino County, which either questioned the practice of purposely leaving parents in the dark about the in-classroom/on-campus comportment of their own children or explicitly mandated that parents be informed of their children’s putative gender transition and were sued or sanctioned by state officials and state courts for doing so.
In entering his ruling in the case of Mirabelli et al. v. Olson et al., Judge Benitez granted a permanent injunction against state officials, ruling that the government and school officials cannot supplant parents in raising their children and overseeing the medical treatment they receive.
In April 2023, Elizabeth Mirabelli and Lori Ann West, middle school teachers in the Escondido Union School District, together with a group of parents who were not identified by name, 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 were faced with a situation in which students have assumed a gender at a variance with their natural sex. The suit contended that California school districts, in accordance with guidance provided by the California Department of Education, forced teachers to deceive parents if a student requested to go by a new name or pronouns at school.
The 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 lie to parents.
In rendering his decision, Benitez traversed the state’s contention that students’ privacy rights outweighed parents’ entitlement to participating in the upbringing of their children and wrote that as a consequence of parental exclusion policies in general and the parental exclusion policy in place in the Escondido Union School District, “The state purposefully interferes with a parent’s access to meaningful information about their child’s gender identity choices. It is a grave mistake to deprive parents of information about their child’s gender at school.” Judge Benitez noted that the basis for preventing parents from learning about their children assumption of a variant gender identity was that parents of students exploring or assuming such a transition have malintent toward their children. “The problem,” Benitez wrote, “is that the parent exclusion policies seem to presume that it is the parents that will be the harassers from whom students need to be protected.” Judge Benitiez said seeking to protect students was admirable, but that the state cannot make a blanket assumption that parents are a danger to their own children. Judge Benitez characterized as “laudable” the efforts by state officials to support and protect transgender students, but that achieving those goals cannot entail disregarding the constitutional rights of others, such as the First Amendment rights reserved for Mirabelli and West and the fundamental rights affirmed in the Supreme Court precedents of Parham v. J.R. and the Mahmoud v. Taylor establishing the parent-child relationship as older and more fundamental than the rights of the state and that parents rather than school administrators hold the “high duty” to recognize symptoms of illness or distress in their children.
“The state defendants are, in essence, asking this court to limit, and restrict a common-sense and legally sound description by the United States Supreme Court of parental rights,” Benitez wrote. “That, this Court will not do.”
According to Judge Benitez, the state and the California Department of Education, through its imposition of the principle of parental exclusion was engaging a what he termed a “trifecta of harm.” This extended to damaging children by cutting them off from parental support, hurting parents by usurping their rights to engage in decision-making pertaining to their offspring and harming teachers by compelling them to lie.
Judge Benitez referenced the ordeal of two of the parents who were plaintiffs in the suit and that of their child, who was previously a middle school student. identified together by the alias “Poe family.” The student was, according to Judge Benitez, “socially transitioned” by school staff without the knowledge of his parents, who did not become aware of what had taken place until the student experienced a mental health crisis and psychological breakdown, which resulted in hospitalization.
Judge Benitez referenced expert testimony heard at trial which held that social transitioning is tantamount to “medical intervention.” The judge said parents are entitled under the law to exercise oversight over their child’s medical treatment. “Had the parents been unaware of their boy’s new gender expression, the boy may have continued through his years mistakenly thinking he must be a girl,” Judge Benitez wrote.
Judge Benitez analogized withholding from parents information about their children’s assumed gender identity to educators failing to share students’ physical injuries or other health-related concerns with parents.
“When it comes to a student’s change in gender identity, California state policymakers apparently do not trust parents to do the right thing for their child,” Judge Benitez stated.
The California Attorney General’s Office, Superintendent of Public Instruction Tony Thurmond and members of the State Board of Education testified at trial that parental exclusion on balance was more beneficial than disclosing to parents information about their children’s efforts toward gender transition because it would provide a “safer environment” for those students. The state defendants maintained they had a duty to provide safe learning conditions for students and that “outing” students to their parents could lead to bullying, harassment and both physical, psychological and emotional abuse. Students, despite not having attained the age of majority under both state and federal law, the defendants argued, had privacy rights and were entitled to “bodily autonomy.” Schools and school districts were bound to provide students with those protections and guarantees, according to the defendants.
The defendants disputed that honoring a student’s choice of gender identity, name or pronoun constituted medical treatment but was a social nicety or courtesy that grew out of basic human decency.
According to Judge Benitez, the defendants were unable to cogently demonstrate how perpetuating parents’ ignorance about their children’s assumption of an altered gender represented a “narrowly tailored solution to a compelling state interest.”
“Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state,” Judge Benitez stated, concluding, “Disagreement is not abuse, and the court so finds.”
The decision in Mirabelli et al. v. Olson et al., which was litigated in federal court, marks a significant deviation from the tenor of decisions reached in cases dealing with the same topic in state court.
Federal law supersedes state law. According to the Supremacy Clause of the U.S. Constitution, (Article VI, Clause 2), federal laws made pursuant to the Constitution are the “supreme law of the land, “supreme law of the land,” such that if a state law conflicts with a feeral law, federal law will override the state law, a concept referred to as preemption. In Mirabelli et al. v. Olson et al., Judge Benitez ruled that the parental exclusion policy in place at the Escondido Union School District, which is virtually indistinguishable from policies in hundreds of other school districts in California, violated the 14th Amendment’s substantive due process clause and the First Amendment rights of religious parents and teachers.
Judge Benitez’s order grants summary judgment in favor of the plaintiffs and issues a permanent injunction. This effectively prevents schools or school districts from stopping teachers from disclosing to parents the gender identity their children have adopted in a school or classroom setting or in any way punishing those teachers for doing so. It prevents schools from requiring that teachers or educators lie to parents.
The ruling applies to all public-school districts in California, eradicating the parental exclusion policies now in place in hundreds of school districts throughout California.
Judge Benitez’s ruling in Mirabelli et al. v. Olson et al. carries with it not just the possibility but the likelihood that it will undo several decisions in state court and parallel policies, including ones impacting a San Bernardino County school district.
The Chino Valley Unified School District was the first district in California to pass a parent notification policy, having done so in a very real way at legal peril and expense to itself, suffering multiple setbacks in court when the State of California filed suit against it in state court and in main prevailed.
By 2022, the Chino Unified School District’s high schools and middle schools, as was the case in virtually all high schools and middle schools/junior highs throughout California, existed as a sanctuary campuses for students of what was traditionally considered to be alternative sexual orientations to openly indulge their sexual identities without fear of exposure outside of that setting. This included the provision of on-campus “change rooms” where students, who had departed from home wearing attire consistent with their birth gender could change into clothes associated with the opposite gender and throughout the school day maintain that sexual identity, then go to the change room to redon the clothes they had left home in and return to their familial setting, thereby preventing their parents from knowing or discovering the dual nature of their gender diversion. Instead of banning the changing rooms or preventing male students from assuming the guise of females while at school or disallowing girls to take on the outer representation of themselves as boys, the district in July 2023, on a 4-to-1 vote with board members Sonja Shaw, James Na, Andrew Cruz and Jon Monroe prevailing over Board Member Don Bridge, adopted a parental notification policy, whereby the district’s teachers were required to inform parents within three days if one of their children assumed a gender identity different from the sexual identification they were given at birth and/or what appeared on his or her birth certificate.
That parental notification policy was groundbreaking, as the district was the first in the state to codify such a policy. In addition, the board majority, which is not shy about its beliefs and philosophy, openly adopted the policy, doing so with much fanfare. This brought, before the vote to adopt he policy was made, a letter from California Attorney General Rob Bonta, a letter of opposition in which he vowed to take action against the district if it adopted such a policy and attempted to enforce it. California Superintendent of Public Instruction Tony Thurmond, concerned that Chino Valley Unified’s action in this regard might touch off a contagious round of similar policy adoptions in districts throughout the state, flew down from Sacramento to lobby against the policy at the board meeting when the policy was voted upon. Both Bonta and Thurmond characterized the policy as one that was hostile to the interests of the transsexual community, and they emphasized that many transsexual youths have parents who would be unaccepting of their life choices and would potentially subject them to physical and psychological abuse if they learned that they had assumed a variant gender.
Despite the opposition, the board majority adopted the policy. A little more than a month later, just as the 2023-24 school year was about to get under way, Bonta, in his capacity as California attorney general, sued the Chino Valley Unified School District in an effort to prevent it from implementing the policy it had adopted, and stem the trend of other districts elsewhere in the state adopting similar policies. In filing that suit, Bonta characterized the policy as “destructive” and “downright dangerous,” while asserting that the policy “puts transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures” and that as a consequence of the school district action, such students were “under threat’’ and “in fear,” facing “the risk of emotional, physical, and psychological harm from non-affirming or unaccepting parents or guardians.” The policy, according to the attorney general “unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical.”
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 sexual identity choice.
Bonta’s filing put the new policy on hold and 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.
Ultimately, the matter was transferred to the courtroom of San Bernardino County Superior Court 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.
In making his ruling, however, Sachs stated that the provision of the policy which pertained to informing parents whenever an alteration of their children’s transcripts or official records were altered fell within the rubric of the U.S. Constitution. The district took that guidance to heart and in March 2024 revamped the policy, making no mention of sexuality or gender transition, instead mandating that parents be notified when their children’s official school records were changed. This, from a practical standpoint, was inclusive of the intent contained in the policy adopted in July 2023 was inclusive of the intent contained in the policy adopted in July 2023, achieving what the advocates of parental disclosure wanted, while maneuvering around the legal constraints Bonta had constructed.
In a sure sign that Shaw, Na, Cruz and Monroe had scored a victory and hit a nerve, 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 was raging in state court, Mirabelli vs. Olson was proceeding in federal court. Judge Benitez’s ruling and order has direct and tremendous bearing on not only the decisions made in state court, obviating the finding and ruling by Judge Sachs, but impacting the suit brought by the district in July 2024 and rendering AB 1955 unenforceable.
The possibility yet exists that parental exclusion policies in California’s school districts can be salvaged if Judge Benitez’s ruling is overturned on appeal. The California Attorney General’s Office filed an application to stay Benitez’s order, pending an appeal. The attorney general’s petition states that “the severe public harms associated with nonconsensual disclosure of a student’s private gender identity information weigh strongly in favor of [a]stay” and that without one being granted “teachers and school officials could begin informing parents about students’ gender identities in ways that threaten substantial harm to students. Once that occurs, the harm is irreparable. The information cannot be un-disclosed.”
According to the attorney general’s office, “”We believe that the district court misapplied the law and that the decision will ultimately be reversed on appeal. We are committed to securing school environments that allow transgender students to safely participate as their authentic selves while recognizing the important role that parents play in students’ lives.”