A sweeping federal court decision in September found it unlawful to force teachers to hide information about students’ “gender identity” from parents. Two veteran teachers brought claims against members of the Escondido Union School District (EUSD) Board of Education and certain members of the EUSD administrative staff, as well as members of the California State Board of Education and the State Superintendent.
United States District Judge Roger T. Benitez rendered the decision on September 14, 2023, making it illegal for schools to hide information about students from parents. Following are direct excerpts from his ruling:
If a school student suffers a life-threatening concussion while playing soccer during a class on physical fitness, and the child expresses his feelings that he does not want his parents to find out, would it be lawful for the school to require its instructor to hide the event from the parents? Of course not. What if the child at school suffers a sexual assault, or expresses suicidal thoughts, or expresses aggressive and threatening thoughts or behavior? Would it be acceptable not to inform the parents? No. These would be serious medical conditions to which parents have a legal and federal constitutional right to be informed of and to direct decisions on medical treatment. A parent’s right to make decisions concerning the care, custody, control, and medical care of their children is one of the oldest of the fundamental liberty interests that Americans enjoy. However, if a school student expresses words or actions during class that may be the first visible sign that the child is dealing with gender incongruity or possibly gender dysphoria, conditions that may (or may not) progress into significant, adverse, life-long social-emotional health consequences, would it be lawful for the school to require teachers to hide the event from the parents?
Plaintiffs Elizabeth Mirabelli and Lori Ann West are two teachers at Rincon Middle School, which is part of EUSD. Mrs. Mirabelli teaches English, and Mrs. West teaches physical education. According to the Complaint, both have been named “Teacher of the Year” at different times while teaching for EUSD. The district is a public school district with approximately 16,000 students in kindergarten through eighth grades. As a government-created entity it is obligated to follow the laws of the State of California and the California Constitution as well as the laws of the United States and the U.S. Constitution. Local school districts have traditionally been guided by local school boards familiar with the needs and opportunities of the local community. In the process of providing a public education for Escondido’s school-age children, EUSD hires, trains, and supervises teachers and as part of their duties its teachers must communicate from time to time with the parents of students.
The result of the new EUSD policy is that 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 plaintiffs in this action are two experienced, well-qualified, teachers. The teachers maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parent. The teachers also maintain that parents enjoy a federal constitutional right to make decisions about the care and upbringing of their children.
The teachers allege a well-founded fear of adverse employment action should they violate the EUSD gender identification confidentiality policy by communicating accurately to a student’s parents her own observations or concerns, as a teacher, about the student’s gender incongruence.
Consequently, when it comes to communicating with parents, the plaintiffs have been told by EUSD through its attorneys that they can say only: “the inquiry is outside the scope of the intent of [my] interaction and state that the intent of the communication, may involve behavior as it relates to school and class rules, assignments, etc.” Teachers may refer the parent to the school principal, but the principal will not disclose more information either, without the student’s consent. Without a student’s consent (regardless of the student’s age), the school district operates within a veritable cone of silence. Parents are left outside.
EUSD responds in part, that [its secrecy policy] is required by California law as explained and communicated through the California Department of Education’s publication titled Frequently Asked Questions about the School Success and Opportunity Act (Assembly Bill 1266) … Page 5 of the FAQs provides an answer to the question, “May a student’s gender identity be shared with the student’s parents, other students, or members of the public?” It says, “A transgender or gender nonconforming student may not express their gender identity openly in all contexts, including at home. Revealing a student’s gender identity or expression to others may compromise the student’s safety. Thus, preserving a student’s privacy is of the utmost importance. The right of transgender students to keep their transgender status private is grounded in California’s antidiscrimination laws as well as federal and state laws. Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”
FAQs page 7 explains that if a student chooses to be addressed by a name or pronoun all school district personnel are required to use said chosen name/pronoun. The student’s age is not a factor, “as children as early as age two are expressing a different gender identity.”
To this end, the state Department of Education’s FAQs contemplate a sort of double set of books to be kept by a school district – specifically for transgender or gender nonconforming students. For example, FAQs page 6 says, “it is strongly recommended that schools keep records that reflect a transgender student’s birth name and assigned sex (e.g., copy of the birth certificate) apart from the student’s school records. Schools should consider placing physical documents in a locked file cabinet in the principal’s or nurse’s office.” And at FAQs page 7, “[i]f the school district has not received documentation supporting a legal name or gender change, the school should nonetheless update all unofficial school records (e.g. attendance sheets, school IDs, report cards) to reflect the student’s name and gender marker that is consistent with the student’s gender identity.”
The upshot of the Board of Education direction seems to be that once 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.
However, under the antidiscrimination policy, a teacher is not permitted to inform the parents of this change without the student’s consent. Classroom teachers who are in the best position to observe the student and forms the opinion that the intellectual or social health and well-being of the student may be at risk related to gender nonconformance or dysphoria, under the antidiscrimination policy, is not permitted to inform the parents without the student’s consent. Regarding gender confidentiality and nondisclosure, FAQs page 6 says, “schools must consult with a transgender student to determine who can or will be informed of the student’s transgender status, if anyone, including the student’s family. With rare exceptions, schools are required to respect the limitations that a student places on the disclosure of their transgender status, including not sharing that information with the student’s parents.” (Emphasis added.)
Though it does not require the wisdom of a Supreme Court Justice to see, the Supreme Court recognizes that youth tend to make impetuous and ill-considered life decisions. “First, as any parent knows and as the scientific and sociological studies . . . tend to confirm, ‘a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’” Roper v. Simmons, 543 U.S. 551, 569 (2005) (citations omitted). In the same vein, and perhaps especially true in the school setting, “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Id. And “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.” Id. at 570 (citation omitted). “Indeed, notes the Court, “the relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Id.
C. Federal Constitutional Rights of Parents
The United States Supreme Court has historically and repeatedly declared that parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children. In Troxel v. Granville, 530 U.S. 57, 67-68 (2000), the Court remarked, “the custodial parent has a constitutional right to determine, without undue interference by the state, how best to raise, nurture, and educate the child. The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment.” The Court commented that the principle, first formulated in Myer and Pierce, “long ha[s] been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the ‘custody, care and nurture of the child,’ free from state intervention.”
Beginning with Myer v. Nebraska, 262 U.S 390, 400 (1923), the Court said, “[t]he American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. . . . Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.”
In Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), the Court acknowledged “the liberty of parents and guardians to direct the upbringing and education of children under their control,” and said, “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
In Prince v. Massachusetts, 321 U.S. 158, 166 (1944), the Court pointed out that “[i]t is cardinal with us 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.”
In Stanley v. Illinois, 405 U.S. 645 (1972), the Court recounted that it “has frequently emphasized the importance of the family, and explained, “[t]he rights to conceive and to raise one’s children have been deemed ‘essential.’”
In Parham v. J.R., 442 U.S. 584, 604 (1979), the Court declared, “[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is ‘the mere creature of the State’ and, on the contrary, asserted that parents generally ‘have the right, coupled with the high duty, to recognize and prepare their children for additional obligations.’” The Court continued, “[t]he law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” Id. (citations omitted). “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Id. at 603. The Parham court recognized the parental right to be involved in — and even override their child’s opinion on — the need for medical care or treatment.
Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.
Parham, 442 U.S. at 603-04 (“The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child.”).
In Santosky v. Kramer, 455 U.S. 745, 753 (1982), the Court recognized that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents . . . .”
In Hodgson v. Minnesota, 497 U.S 417, 447 (1990) (plurality), the Court said, “[a] natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the children free from undue state interference.”
In Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 529 (2007), the Court said, “it is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child.”
These are not strange or novel notions. The United States Court of Appeals for the Ninth Circuit recently acknowledged, yet again, the continuing vitality of a parent’s constitutionally protected interest in raising a child. In David v. Kaulukukui, 38 F.4th 792, 799 (2022), the court observed, “[t]he interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court. Our caselaw has long recognized this right for parents and children under the Fourth and Fourteenth Amendments.” (citations omitted).
The constitutional right of parents to direct their child’s education is further protected through Congressional policy, as exemplified by the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 CFR part 99). FERPA requires schools to provide parents the opportunity and the right to inspect and review their child’s education records (34 CFR 99.10 – 99.12). FERPA speaks to the Congressional elevation of the importance of parents being involved in their child’s education. That involvement includes more than academics and extends to matters of health. The privacy right of a child, according to FERPA, takes second place to his or her parents’ right to know.
In the end, EUSD’s policy of elevating a child’s gender-related choices to that of paramount importance, while excluding a parent from knowing of, or participating in, that kind of choice, is as foreign to federal constitutional and statutory law as it is medically unwise.
… Whether a child’s state law right to privacy includes a right of confidentiality from their own parents after the child has expressed a desire to be publicly (at school) known by a new name and referred to by new pronouns, seems unlikely. After all, one element of a right to privacy is a reasonable expectation of privacy. A student who announces the desire to be publicly known in school by a new name, gender, or pronoun and is referred to by teachers and students and others by said new name, gender, or pronoun, can hardly be said to have a reasonable expectation of privacy or expect non-disclosure.
While the Court is unaware of state appellate court decisions recognizing a child’s right to quasi-privacy about their gender identity expressions, and none placing such a right above a parent’s right to know, there are decisions describing parents’ rights and obligations. For example, in Brekke v. Wills, 125 Cal.App.4th 1400 (Cal. App. 2005), a California court of appeal made clear that a parent’s rights are superior to a child’s rights. “We categorically reject the absurd suggestion that defendant’s freedom of association trumps a parent’s right to direct and control the activities of a minor child, including with whom the child may associate. Id. at 1410 (citations omitted). “The liberty interest … of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court.” Id. (quoting Troxel, 530 U.S. at 65). Brekke continues, “[w]hether a child likes it or not, parents have broad authority over their minor children.” Id. Brekke then lays out parents’ obligations regarding children. “Not only do parents have a constitutional right to exercise lawful control over the activities of their minor children, the law requires parents to do so.” Id. at 1410-11 (citing Cal. Penal Code, § 272, subd. (a)(1), (a)(2) [parents of a child “under the age of 18 years shall have the duty to exercise reasonable care, supervision, protection, and control over their minor child” so as not to “encourage” or “cause” the child to “become or to remain a person within the provisions of Section 300 [juvenile dependency], 601 [habitually disobedient or truant], or 602 [juvenile delinquency] of the Welfare and Institutions Code” and are subject to criminal punishment for a violation of that duty]; Ed.Code, §§ 48260.5, subds. (b), (c); 48293 [parents who fail to compel their child’s attendance at school are subject to criminal prosecution]; see also Civ.Code, § 1714.1
Another California court of appeal made it clear that, in a similar Fourth Amendment context, a child’s right to privacy and to object to a warrantless search of his room must give way to a parent’s superior right to consent. See In re D.C., 188 Cal.App.4th 978 (Cal.App. 2010). The appellate court wrote,[The minor] Appellant argues the officers’ failure to honor his objection to their entry constituted a violation of his constitutional rights, noting minors are entitled to the protections of the Constitution and, in particular, the search and seizure provisions of the Fourth Amendment. While there is no question minors are entitled to the protection of the Fourth Amendment, adults and minors are not necessarily entitled to the same degree of constitutional protection.
C. Free Exercise Clause
… Both Mirabelli and West hold sincere religious beliefs. Their beliefs are well-articulated, integrated, and comprehensive. Their beliefs are better described and developed than mentioned in the limited space here. In short, Mirabelli believes that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children. In a similar vein, West believes that the relationship between parents and their child is created by God with the intent that the parents have the ultimate responsibility to raise and guide their child. Both Mirabelli and West believe that God forbids lying and deceit.
EUSD preliminarily argues that [its secrecy policy] does not infringe on plaintiffs’ religious beliefs at all because the policy does not require plaintiffs to “lie” to parents. But that 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. It is that aspect which infringes on the plaintiffs’ free exercise of their religious beliefs.
In the end, Mirabelli and West face an unlawful choice along the lines of: “lose your faith and keep your job, or keep your faith and lose your job.” Cf. Keene v. City & Cnty. of San Francisco, U.S. App. LEXIS 11807, *6 (9th Cir. May 15, 2023). Yet, “[r]espect for religious expressions is indispensable to life in a free and diverse Republic.” Kennedy, 142 S. Ct. at 2432-33. The only meaningful justification the District offers for its insistence that the plaintiffs not reveal to parents gender information about their own children rests on a mistaken view that the District bears a duty to place a child’s right to privacy above, and in derogation of, the rights of a child’s parents. The Constitution neither mandates nor tolerates that kind of discrimination.
The Attorney General, another arm of the state, is currently suing another school district for not following the State’s FAQs page and its rationale. With no evidence to the contrary at this point, it must be concluded that the State is the driving force behind EUSD’s alleged violations of plaintiffs’ constitutional rights.
A request to change one’s own name and pronouns may be the first visible sign that a child or adolescent may be dealing with issues that could lead to gender dysphoria or related coexisting mental-health issues. Communicating to a parent the social transition of a school student to a new gender — by using preferred pronouns and non- conforming dress — is called discrimination/harassment by the defendants, despite having little medical or factual connection to actual discrimination or harassment. Plaintiffs Elizabeth Mirabelli and Lori Ann West have represented in their pleadings that they are committed to treating all transgender or gender diverse children with kindness, respect, and love. They are entitled to preliminary injunctive relief from what the defendants are requiring them to do here, which is to subjugate their sincerely-held religious beliefs that parents of schoolchildren have a God-ordained right to know of significant gender identity-related events. There are, no doubt, some teachers that have no disagreement with AR 5145.3 [the secrecy policy]. This injunction does no violence to their constitutional rights.
Parental involvement in essential to the healthy maturation of schoolchildren. The Escondido Union School District has adopted a policy without parent input that places a communication barrier between parents and teachers. Some parents who do not want such barriers may have the wherewithal to place their children in private schools or homeschool, or to move to a different public school district. Families in middle or lower socio-economic circumstances have no such options. For these parents, the new policy appears to undermine their own constitutional rights while it conflicts with knowledgeable medical opinion. An order enjoining the new district policy is in the better interests of the entire community, as well as the plaintiff teachers.
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.
THEREFORE, IT IS ORDERED THAT:
- The Plaintiffs’ Motion for Preliminary Injunction is GRANTED. The Escondido Union School District Defendants, the State Defendants, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, and those who gain knowledge of this injunction order, or know of the existence of this injunction order, are enjoined from enforcing against Plaintiffs Mirabelli or West, EUSD AR 5145.3 or the associated official policy described in the California Department of Education’s FAQs page on gender identity-related disclosures by teachers to parents, and are to restrain any governmental employee or entity from taking any adverse employment actions thereupon against Plaintiffs Mirabelli or West, until further Order of this Court.