Has the U.S. Supreme Court already signaled its position on parents’ right to be informed when their children socially transition or express gender nonconformity at school? Or is it poised to tackle the issue more fully with a new case?
Meanwhile, how much does the high court’s preliminary decision in a case on schools’ policies around disclosing—or not disclosing—students’ gender transitions to parents matter for schools across the nation right now?
The court this week ruled that California policies that sometimes limit or discourage schools from disclosing information to parents about children’s gender transitions and expressions at school likely violate parents’ constitutional rights, including their First Amendment religious freedom protections and 14th Amendment right to direct their children’s upbringing.
Ruling in a matter on its emergency docket, the court reinstated an injunction blocking the state policies, while litigation in lower courts continues. But the majority in the 6-3 ruling, along the court’s usual ideological lines, seemed to show its cards on the merits of the issue.
“California’s policies … substantially interfere with the right of parents to guide the religious development of their children,” said the unsigned March 2 opinion in Mirabelli v. Bonta. Also, the court said, state policies that “conceal that information from parents and facilitate a degree of gender transitioning during school hours … likely violate parents’ rights to direct the upbringing and education of their children.”
“I think they felt like this was the best way to quickly send a signal to public schools across the country that you need to stop doing this, that you can’t be doing something which the medical profession considers to be a mental health treatment, and keep parents out of that process,” said John J. Bursch, the vice president of appellate advocacy at Alliance Defending Freedom, a conservative legal organization involved in multiple challenges to transgender-friendly school policies nationwide.
Chris Erchull, a senior staff lawyer with GLBTQ Advocates & Defenders, or GLAD Law, criticized the majority but agreed the ruling, while provisional, is likely to be felt in schools across the country.
“I’m not going to hide the ball—this was a terrible decision, and it is going to have negative consequences” for transgender students, he said. “I think that [lower] courts are going to be struggling for a while … to figure out the parameters of this ruling.”
Similar cases pending on the court’s regular docket
Neither Alliance Defending Freedom nor GLAD Law are directly involved in the California case. But a similar case is awaiting a decision on whether the justices will grant review.
Bursch and ADF have an appeal pending before the justices in Foote v. Ludlow School Committee, which concerns a challenge to a Massachusetts school district’s policy allowing students to determine whether their parents should be notified about gender transitions and changes to names and pronouns.
In Foote, parents raising a 14th Amendment challenge to the policy lost in lower courts and have asked the Supreme Court to take up their case.
Justice Elena Kagan, in her dissent in Mirabelli, joined by Justice Ketanji Brown Jackson, criticized the majority for deciding key issues using the “shortcut procedures” of the emergency docket when it could decide to take up the Foote case or a similar one.
Then “the court could ensure that the issues raised by such policies receive the careful, disciplined consideration they merit, rather than the inevitably truncated review the court affords emergency applications,” Kagan said.
Bursch said he still hopes the court grants review in the Massachusetts case.
“Ultimately, that’s better for the development of the law, to have that kind of litigation crucible where everything is boiled down, thought very deeply about, and then you end up with a comprehensive opinion,” Bursch said.
Erchull of GLAD Law, who filed a friend-of-the-court brief in a lower court supporting the Ludlow, Mass., school district’s policies that support transgender students’ choices, said he agreed with Kagan that the emergency docket “is not the place to be going through with these kinds of serious, weighty issues and trying to answer these big questions.”
“One thing that kind of drives me a little nuts about reading the [Mirabelli] decision is there’s no limiting principle here about what aspects or elements of a young person’s expression of [gender] identity at school are subject to” the court’s conclusions, he added.
“Does it require immediate disclosure to parents” of any hint of a gender transition? Erchull said.
“The voice, the identity, and the agency of the young people is kind of absent,” he added.
The court was to consider the pending Foote appeal at its private conference on Friday and could announce as soon as Monday whether it will grant review. There is another case on gender transitions and expression at school, Littlejohn v. School Board of Leon County, that is also fully briefed, though that case was not on the justices’ list for consideration at their private conference this week.
The court could grant or deny review of either case, or send one or both cases back to lower courts for fresh reviews in light of its Mirabelli decision.
What legal experts are parsing in the Mirabelli opinion
Unlike many emergency docket orders, which can be brief and procedural, the Mirabelli ruling included a lengthier majority opinion, a concurrence signed by three justices, and Kagan’s dissent.
Those opinions gave education law experts plenty to mull over, while leaving many questions unresolved.
The unsigned majority opinion centered its discussion of the First Amendment free-exercise right of religious parents on its decision last year in Mahmoud v. Taylor, which blocked a Maryland school district’s policy of refusing to allow parents to opt their children out of lessons involving LGBTQ+ storybooks.
“The intrusion on parents’ free exercise rights here—unconsented facilitation of a child’s gender transition—is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud,” the majority said in Mirabelli.
Erchull said the ruling suggests the court may be signaling “a very expansive view of Mahmoud that goes beyond just curriculum.”
One issue the court said little about in Mirabelli involves the rights of teachers to communicate with parents about students’ gender transitions or expression. Some teachers in Mirabelli claimed the California policies violated their religious beliefs, and a federal district court granted them the right to opt out of school policies that infringed on their right to contact parents.
The U.S. Court of Appeals for the 9th Circuit, in San Francisco, blocked the district court’s injunction both as to the teachers’ and parents’ rights. While the Supreme Court’s decision lifted that block for the parents, it did not do so for the teachers, without elaboration.
The issue has already surfaced in other cases. Just this week, an Indiana school district paid $650,000 to settle a lawsuit brought by a teacher who resigned rather than comply with a policy requiring staff to use transgender students’ chosen names and pronouns.
Questions, and further briefing, in California
The Supreme Court’s Mirabelli decision is being scrutinized most closely in California, where a federal district court’s statewide injunction has now been restored, favoring any parent who objects to the state policies they view as interfering with their rights.
The 9th Circuit court, which is still reviewing the case, has asked for supplemental briefs from both the original plaintiffs and the state.
California Attorney General Rob Bonta, a Democrat, said in a statement, “We remain committed to ensuring a safe, welcoming school environment for all students while respecting the crucial role parents play in students’ lives.”
Lawyers for the plaintiffs suggested the case was virtually resolved.
“No more can bureaucrats secretly facilitate a child’s gender transition while shutting out parents,” Peter Breen, executive vice president and head of litigation at Thomas More Society, a Chicago-based legal organization that represents the challengers to the state policies, said in a statement.
But a prominent education lawyer in California said there were still issues to resolve.
Sloan R. Simmons, a partner in the Sacramento office of Lozano Smith, a law firm that does work for some 500 California school districts, said he was getting lots of inquiries from clients—some have policies consistent with the state’s measures, while others have policies siding more strongly with parental rights.
“The questions are coming fast from around the state,” he said.
While the Supreme Court’s view is clear, he said, several questions remain unresolved, particularly when a school’s obligation to inform parents begins.
Simmons said it would be helpful for everyone if the high court grants full review of a case such as the one from Massachusetts.
“I do think that it would be a greater ultimate benefit for the court to take up Foote and flesh all this out in detail,” he said.
