The Volokh Conspiracy
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Challenge to California Policy Limiting Teachers' Disclosure to Parents of Student's Changed Gender Identity …
can proceed (under the First Amendment and under parental constitutional rights law), the court says, though there's no actual decision on whether the plaintiffs (parents and teachers) will prevail.
From Mirabelli v. Olson, decided today by Judge Roger Benitez (S.D. Cal.), the introduction and the conclusion:
Plaintiffs are teachers in the Escondido Union School District ("EUSD") and parents of students in other California school districts…. The Plaintiffs contend that a state policy promulgated by the California Department of Education and adopted by local school districts violate their rights under the First and Fourteenth Amendments …. The gravamen of the state policy is that public school teachers are not to reveal to parents a student's announced change of gender identity in order to maintain the student's privacy, except where the student consents to disclosure….
It is still true that 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 health issues. Yet, for teachers, communicating to a parent the social transition of a school student to a new gender—by using preferred pronouns or incongruent dress—is not generally permitted under EUSD's and the State Defendants' policies.
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. The Defendants stand on unprecedented and more recently created state law child rights to privacy and to be free from gender discrimination. These rights may compete when it comes to information about a child's expressed gender incongruence in a public school. Parents have a right to know about their child gender expression at school. And a child has a right to keep gender expressions private and to be protected from discrimination.
The Supreme Court and the Ninth Circuit have clearly and unambiguously declared parents' rights as they relate to their children…. "We have long recognized the potential conflict between the state's interest in protecting children from abusive or neglectful conditions and the right of the families it seeks to protect to be free of unconstitutional intrusion into the family unit, which can have its own potentially devastating and long lasting effects." …
There are no controlling decisions that would compel this Court to limit or infringe parental rights, notwithstanding the State's laudable goals of protecting children. 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. Therefore, the Court finds that the Plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied.
The opinion is over 8000 words long, but here's an excerpt:
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 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." Likewise, in arguing that the parents fail to state a substantive due process claim, the State Defendants assert that parents do not enjoy a fundamental right to be informed about their student. 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."
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." This is especially true with regard to issues of health.
"Surely, [a parent's right] includes a 'high duty' to recognize symptoms of illness and to seek and follow medical advice." A child's gender incongruity is a matter of health. Matters of a child's health are matters over which parents have the highest right and duty of care. Parental rights over matters of health continue to be preeminent even where the government may worry about a general possibility of abuse or parental non-acceptance due to their child's exhibition of gender incongruity. The Supreme Court took this approach in Parham v. J.R. (1979),
Appellees argue that the constitutional rights of the child are of such magnitude and the likelihood of parental abuse is so great that the parents' traditional interests in and responsibility for the upbringing of their child must be subordinated at least to the extent of providing a formal adversary hearing prior to a voluntary commitment.
Our 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 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….
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 …. 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.
And although the State Defendants disagree, it easily follows that parents do have a constitutional right to be accurately informed by public school teachers about their student's gender incongruity that could progress to gender dysphoria, depression, or suicidal ideation, because it is a matter of health….
The Defendants' policies do little to protect a parent's interests in their child's health. On the contrary, when on occasion these interests collide, the Defendants' policies promote the ascendancy of a child's rights over the child's parents. The Supreme Court's precedents point the other way toward "permit[ting] the parents to retain a substantial, if not the dominant, role" in a health care decision. For example, the Supreme Court points out that "[t]he fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parent's authority to decide what is best for the child."
There are no controlling decisions for this Court to follow in this case. This case presents the question of whether the constitutional rights of parents may be subordinated by a state's imposition of policies that elevate a child's state created and unprecedented rights above or beyond the rights of their parents. 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. Because this is a lynchpin argument for the State Defendants, an argument with which the Court disagrees, the State Defendants' motion to dismiss the parent Plaintiffs' claim for violation their substantive due process rights (Claim 7) is also denied….
[B]oth the teachers and the parents have [also] adequately stated claims upon which relief can be granted in asserting that the non-disclosure policies substantially burden their First Amendment right to the free exercise of religion.
The State Defendants … argue that their policies do not force the parents to act contrary to their religious beliefs. According to the Complaint, the policies force parents to accede to a school's plan to neither acknowledge nor disclose information about their child's gender dysphoria. By concealing a child's gender health issues from the parents, parents are precluded from exercising their religious obligations to raise and care for their child at a time when it may be highly significant, because they are kept uninformed of the need for their child's religious guidance. "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary." For parents who are not rich and have limited financial resources to choose private schooling or homeschooling for their child, there remains only public school placement for satisfying the state truancy law obligation of school attendance.
Whether the teachers and parents can prove their allegations may remain for summary judgment or trial but they have adequately stated plausible free exercise claims….
EUSD also argues for dismissal of West's Title VII claims. West asserts a religious discrimination claim based on a failure to accommodate (Claim 4) and a retaliation claim (Claim 5). Concerning the failure to accommodate claim, EUSD argues facts to prove that it has engaged in sufficient efforts to accommodate West. For example, it says "EUSD initiated good food [sic] efforts to accommodate West's religious beliefs through meetings…." And EUSD says, "During this process, EUSD came to an agreement with Mirabelli and West…." Id. EUSD may be able to prevail on its defenses at summary judgment or trial, but its arguments here are premature. After all, "[a]n employer who fails to provide an accommodation has a defense only if the hardship [on the employer] is 'undue,' and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered 'undue.'" …
