Federal Judge Safeguards Teachers Right to Say ‘No’ to California’s Gender Secrecy Policy

Separating parents from their kids is a pernicious–really unnatural–proposition. But that is what California state policy requiring schools to keep secret from parents kids’ gender transitions effectuates.

Now, that policy has suffered a serious setback with a federal judge’s sweeping ruling earlier this month  allowing a lawsuit challenging the policy to proceed.  In his decision that placed a primacy on parental rights, United States District Court for the Southern District of California Judge Roger Benitez rejected a motion from California Attorney GeneralRob Bonta to dismiss the case.

Conservative leaders are hailing the decision as possibly laying the groundwork to challenge the law California enacted last year, AB 1955,  that bars school districts from enacting parental notification policies. The California Family Council noted in a statement that, “This ruling allows the lawsuit to proceed, potentially overturning the state’s ban on parent notification policies enacted through AB 1955 last year.”

The original plaintiffs in the case were teachers in the Escondido Unified School District, and they were recently joined in an amended complaint by parents of students in other California school districts.

In his January 7 ruling,  Judge Benitez said that the secrecy policies infringed on the rights of parents and violated bedrock constitutional principles.

“The Supreme Court has long recognized that parents hold a federal constitutional Due Process right to direct the health care and education of their children,” Benitez opined. “The Defendants stand on unprecedented and more recently created state law child rights to privacy and to be free from gender discrimination.”

Benitez wrote that, “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.”

He also delivered a stinging rebuke to California’s contention in court papers that parents have no right to know that their kids are transitioning, contending this argument contradicts long standing Supreme Court  rulings that parents have a right to be involved with their child’s upbringing.

“The arguments by the State Defendants against both the teachers’ claims, and later the parents’ claims, rely on legal suppositions which this Court rejects. For example, in arguing that the teachers fail to state a claim, the State Defendants contend that “parents do not have a constitutional right to be informed of their child’s transgender identity.”

“Specifically, 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.’”

Rejecting those arguments,  Benitez wrote that “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.”

“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.”

He cited a 2000 Supreme Court ruling that said that “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.”

Therefore, “At least as far as decisions on healthcare in school settings are concerned, the long-recognized federal constitutional rights of parents must preponderate and a claim that school policies trench on parents’ rights states a plausible claim for relief.”

Benitez also ruled that the teachers First Amendment rights were violated when they were forced to keep gender transitions secrets from parents because such chicanery turned on an abridgement of the rights of parents.

“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. The teacher Plaintiffs allege that the state and EUSD 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 original lawsuit was filed in 2023  by two middle school teachers in the Escondido Unified School District,  Elizabeth Mirabelli and Lori Ann West.  The defendants were the California State Board of Education, the California Superintendent of Public Instruction and the Escondido Union School District.

Mirabelli and West were represented by the conservative Thomas Moore Society, a Chicago-based public interest law firm.

The teachers contend that complying with what they called the School District Parental Exclusion Policy to keep kids transitions secret from parents conflicted with their religious belief.

“Faced with EUSD’s immoral policies deceiving parents, both Mrs. Mirabelli and Mrs. West sought an accommodation that would allow them to act in the best interests of the children in their care—as required by their moral and religious convictions. Both Mrs. Mirabelli and Mrs. West consider it a moral and religious duty to provide such care for every child in their charge, regardless of personal differences.”

But their request for an exemption from the policies for religious reasons was denied.

The lawsuit says that both “Mrs. Mirabelli and Mrs. West were particularly distressed by the requirements to deceive parents (i.e., the “Parental Exclusion Policies”), which were woven throughout all of the gender identity policies and violated their sincerely held religious and moral beliefs.”

It argued that “EUSD’s requirements—that teachers participate in the exclusion of parents from any decision-making regarding a child’s ‘social transition’—also violate teachers’ free speech and free exercise of religion rights, violates parents’ rights, and are antithetical to the ‘cardinal’ constitutional command that ‘the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’”

The lawsuit also said that the policies forcing teachers to deceive parents by conscripting what they can say about their kids amounts to compelled speech in violation of the First Amendment.

“EUSD’s Parental Exclusion Policies, and their enforcement, also gags Plaintiffs’ speech by prohibiting them from answering truthfully questions asked by parents about their child’s gender identity, whether the child has socially transitioned at school, and Plaintiffs’ perception of that child as it relates to the child’s gender identity.”

Paul Jonna, lawyer for the parents and teachers, said in a statement that the ruling was a victory for parental rights.  “We are incredibly pleased that the Court has denied all attempts to throw out our landmark challenge to California’s parental exclusion and gender secrecy regime,” he said. “Judge Benitez’s order rightly highlights the sacrosanct importance of parents’ rights in our constitutional order and the First Amendment protections afforded to parents and teachers.”

Jonna declined an interview request.

The judge’s ruling was hailed by Chino Valley Unified School District Board President Sonja Shaw, who is suing California over AB 1955 and has been a leader in the battle for parental rights.

She told the California Globe that the ruling should give ammunition to everyone involved in the fight for parental rights.  “In the bigger scheme of things this is going to help us. These are big wins.  When you are fighting the bigger fight these are the marks we need to get to the next step. We need to keep the good fight together.”

“This ruling is another monumental victory in our ongoing fight to protect parental rights, and I’m grateful for all of those who continue to fight the good fight to ensure that parents remain the primary decision-makers in children’s lives,” she added. “While we continue to face opposition from those pushing radical agendas, I firmly believe that California, and those of us standing strong to protect children and for parental rights, are celebrating these wins together. We will continue to fight to protect children and ensure that parents remain central to decisions affecting their children’s future. The courage and determination shown by parents, teachers, advocates and firms in this fight are truly inspiring and we will keep pushing forward together.”