A federal appeals court has blocked for the foreseeable future a groundbreaking decision by a federal district judge in California that said parents have a right to be informed by schools of any gender nonconformity and social transitions by their children.
A unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit on Monday granted the state of California’s request to halt the Dec. 22 decision by U.S. District Judge Roger T. Benitez, which had ruled against state education department guidance that restrains teachers and district staff members from informing parents about a child’s gender identity at school, unless the child consents.
Most school districts in the state have adopted policies aligning with the guidance, which was challenged on federal constitutional grounds by several parents andteachers in the Escondido Union school district near San Diego.
The appeals court, in an unsigned opinion in Mirabelli v. Bonta, said Benitez likely expanded parental rights too broadly under the 14th Amendment’s due-process clause.
“We are skeptical of the district court’s decision on the merits,” said the 9th Circuit panel. Furthermore, the district judge’s broad recognition of a class of all parents and his injunction against the state policies were too sweeping, the court said. It also concluded that Benitez failed to identify the specific policies he was blocking, since the state does not, in all circumstances, forbid disclosure of students’ gender identity information to parents.
“Here, the injunction is sweeping, ambiguous, and based on a lax enforcement of class certification principles,” the 9th Circuit panel said. “It further relies on a faulty reading of the policies at issue. … The public interest in protecting students and avoiding confusion among schoolteachers and administrators weighs in favor of a stay.”
The panel was made up of judges Mary H. Murguia and Andrew D. Hurwitz, both appointees of President Barack Obama, and Judge Salvador Mendoza Jr., an appointee of President Joe Biden.
The California case is one of a growing number involving state or school district policies regarding transgender students. California’s policy pushed back against a trend of conservative-leaning school boards requiring that educators automatically inform parents—without students’ consent—when their children sought to identify at school as a gender that doesn’t align with their sex assigned at birth.
Some conservative justices on the U.S. Supreme Court have dissented from the court’s refusal to take up cases in the last two years involving so-called parental exclusion policies, calling the issue one of “growing national importance.”
The high court is currently considering whether to take up a similar case from Massachusetts, in which a federal appeals court rejected a parental rights-based objection to a Massachusetts school district’s policy of allowing students to determine whether their parents should be notified about gender transitions and their choice of new names and pronouns. (The court could decide whether to grant review in that case as early as Friday.)
Considering parents’ and teachers’ First Amendment claims
Benitez, an appointee of President George W. Bush, said in his ruling last week that state and local “parental exclusion policies” are “designed to create a zone of secrecy around a school student who expresses gender incongruity.”
The district judge said the Supreme Court had reaffirmed parental rights in education last year in its decision in Mahmoud v. Taylor, which held that parents have a First Amendment free exercise of religion right to exclude their children from public school lessons on gender identity and sexual orientation.
Benitez said parental exclusion policies deprive “parents of the opportunity to evaluate a significant medical sign and decide whether to pursue psychological counseling, psychiatric care, gender-affirming care, family acceptance, or something else.”
The judge separately ruled that teachers who raised objections to the parental exclusion policies have First Amendment free speech and free exercise of religion rights to communicate with parents about their students’ gender issues. Such policies “demand that teachers communicate misrepresentations or deceptively avoidant responses to parental questions,” he said.
While “the state’s desire to protect vulnerable children from harassment and discrimination is laudable,” Benitez said, the parental exclusion policies harm gender-transitioning children, their parents, and teachers who are forced to conceal information “they feel is critical for the welfare of their students.”
California Attorney General Rob Bonta, a Democrat, asked the 9th Circuit to block the judge’s decision.
“Outing transgender students to their parents before they are ready threatens severe mental and emotional anguish, depression, and in extreme cases, even suicide,” Bonta said in a court filing. “Although many parents provide a welcoming, supportive environment for their children, not all do so.”
The appellate panel initially issued an “administrative stay” before its full ruling on Jan. 5.
The Thomas More Society, a Chicago-based conservative legal organization representing the parents and teachers challenging the state and local policies, said it would seek review before a larger panel of 9th Circuit judges as well as pursue relief from the Supreme Court.
“We are deeply disappointed that this three-judge panel has taken the extraordinary step of staying a class-wide permanent injunction, disregarding the severe irreparable harm that will now occur to our clients and all members of the classes,” Paul M. Jonna, a special counsel for the society, said in a statement.
