California Federal Court Says Teachers Don’t Have to Comply With School’s Secret Gender Transitioning Policy
Court: “The school’s policy is a trifecta of harm”—it harms the students, it harms the parents, and it harms the plaintiffs “who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students—violating plaintiffs’
After a series of losses in state and federal court, last week finally saw a win in the nationwide battle against public school secret social transitioning policies. California’s Southern District Court Judge Roger Benitez ruled in favor of two middle school teachers who refused to hide information from parents about their children’s newly expressed gender identity.
The teachers claimed that the school’s “parental exclusion” policy violated their constitutional right to free exercise of religion by forcing them to deceive parents. In a strongly worded opinion condemning the policy, the court agreed and temporarily stopped the school from enforcing it against them while it continues to consider the case.
The teachers work at a middle school in California’s Escondido Union School District (EUSD), a public school district with approximately 16,000 students in kindergarten through eighth grade.
They say that at first, few knew about the controversial policy. That’s because school administrators quietly adopted it during the COVID-19 shutdowns over the summer of 2020, “without fanfare, and without opportunity for parental or public input”—much less discussion at a public school board meeting.
As in other cases we’ve covered, children in the EUSD have rights, and those rights override their parents’ rights to be involved in their care and wellbeing. Under the school’s antidiscrimination policy, teachers may not tell parents that their child identifies as a new gender unless they have the student’s consent:
[A] teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender or wants to be addressed by a new name or new pronouns during the school day – names, genders, or pronouns that are different from the birth name and birth gender of the student. Under the policy at issue, accurate communication with parents is permitted only if the child first gives its consent to the school. A teacher who knowingly fails to comply is considered to have engaged in discriminatory harassment and is subject to adverse employment actions.
The teachers say that the “parental exclusion” policy became more widely known at a virtual district-wide teacher conference held in February 2022. At the meeting, teachers were told that parents had no “legitimate need” to know when their children were changing genders.
At the beginning of the following school year, they received emails with lists of the students, including their preferred names and pronouns. For those students who didn’t want their parents to know about their status, teachers were told to use the students’ given names and pronouns when calling home.
But inside the school, when parents were out of earshot, they should use their new names and pronouns.
Keeping “a sort of double set of books” for transgender students—one to be used when speaking to parents and the other to be used in school—gets complicated, so the school offers guidance:
[O]nce a student, whether in kindergarten, eighth grade, or somewhere in between, expresses a desire to be called by a new name or new pronouns, school faculty and staff are to refer to that student by the newly preferred indicators. “Unofficial” school records such as attendance sheets, school IDs, and report cards are to be changed. From that point forward, the student may go through each school day with the faculty and staff addressing the student in person and on records according to the changed moniker.
As far as the teachers were concerned, the school was forcing them to lie to parents in violation of their free exercise rights under the constitution, because lying was against their religion.
But the school district argued that since its policy didn’t require them to outright “lie” to parents, their rights weren’t infringed.
The court disagreed:
[T]hat cannot be fairly said when the policy requires plaintiffs to conceal from parents, by misdirection and substitution, accurate information about their child’s use of a new name, gender, or pronouns at school.
It is one thing if the policy merely delegated the task of talking with parents about a student’s gender incongruence to dedicated, trained personnel. It is quite another to require teachers to withhold this information with the knowledge that the information will be impossible for the parents to obtain from the school. [emphasis in original]
And in that respect, the court held, the policy violated the teachers’ free exercise of their religious beliefs.
The court’s order suspending the policy as against the two teachers applies only for the time being, but it signals they are ultimately likely to succeed on the merits.
So does the court’s condemnation of the policy, in no uncertain terms:
The school’s policy is a trifecta of harm: it harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students — violating plaintiffs’religious beliefs.
Only the week before the court’s ruling, a California state judge temporarily blocked the Chino Valley Unified School District from notifying parents when their children tell their school they want to change genders, as we wrote here. But Thomas More Society‘s Special Counsel Paul M. Jonna, the teachers’ lawyer, says California school districts should now think twice before implementing “parental exclusion” policies:
[T]he State of CA and all school districts are now on notice that policies that require teachers to hide information from parents about their students’ gender identity violate the US Constitution.
And at a court-sanctioned hourly rate of $1200, any school district that does so proceeds “at their own risk and at major taxpayer expense.”
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