Parents Win: Supreme Court Blocks California’s School Gender Secrecy Policy

Parents Win: Supreme Court Blocks California’s School Gender Secrecy Policy

In a landmark ruling, a group of California parents was vindicated today when the Supreme Court restored their rights to be told if their child expresses a new “gender identity” in school.

The Court’s 6-3 decision vacates the Ninth Circuit’s pause on their prior victory in the trial court, which blocked the gender secrecy policy at the end of last year.

Under California’s guidelines, public school teachers are not allowed to notify parents when their child changes names and pronouns to “identify” as the opposite sex, unless they have the student’s consent. These protocols apply to children as young as two and as old as seventeen.

The original lawsuit was brought by two teachers who later joined with the parents in a class action lawsuit challenging the state’s gender secrecy policy under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution, as we covered here and here.

After over two years of litigation in the case, Mirabelli v. Olson, they finally prevailed when the federal district court issued a permanent injunction against the policies in December.

Judge Roger Benitez, a Bush appointee, concluded the parents had the right to be told when their child decides to “become” the opposite sex in school, and the teachers had the right to tell them.

California AG Rob Bonta immediately appealed to the Ninth Circuit, which stayed the trial court ruling, concluding the State was likely to defeat the parents’ constitutional claims—and by extension, those of the teachers.

The parents and teachers are represented by the Thomas More Society. In January, they asked the Supreme Court to vacate the Ninth Circuit’s stay pending appeal of the case.

Today, the Court agreed, granting the stay with respect to the parents, concluding that they are likely to succeed on the merits of both their free exercise and due process claims. California’s policies “substantially interfere with the “right of parents to guide the religious development of their children,” the Court held, referencing its earlier decision in Mahmoud v. Taylor allowing parents to opt-out of LGBTQ lessons:

The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs. … Indeed, 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 Court roundly rejected the State’s argument that its policies advance a compelling interest in student safety and privacy: “[T]hose policies cut out the primary protectors of children’s best interests: their parents…. The State’s interest in safety could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse.”

“Under long-established precedent, parents—not the State—have primary authority with respect to ‘the upbringing and education of children,'” the Court continued. “The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health.”

Parents’ advocates have long argued that secret social transitioning policies constitute a mental health intervention, and today, the Justices agreed. “Gender dysphoria,” they recognized, “is a condition that has an important bearing on a child’s mental health, but when a child exhibits symptoms of gender dysphoria at school, California’s policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents’ rights to direct the upbringing and education of their children.”

Blocking the policies “promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives.” Judge Benitez’s injunction “also permits the State to shield children from unfit parents by enforcing child-abuse laws and removing children from parental custody in appropriate cases,” the Court held.

Justices Thomas and Alito would grant the stay in full, while Justice Sotomayor would deny it in full. Justices Kagan and Jackson dissented.

The Court’s ruling comes as three other petitions challenging secret gender transitioning policies await its review. Over 1,000 school districts throughout the country have similar parental exclusion guidelines—guidelines the Court has just indicated are likely to violate the parents’ religious and fundamental rights to direct the care and upbringing of their children.

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