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California Policy Limiting Teachers' Disclosure to Parents of Student's Changed Gender Identity Violates First Amendment, Court Holds
The introduction to today's long opinion by Judge Roger Benitez in Mirabelli v. Olson (S.D. Cal.):
Long before Horace Mann advocated in the 1840's for a system of common schools and compulsory education, parents have carried out their rights and responsibility to direct the general and medical care and religious upbringing of their child. "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder (1972). It is a right and a responsibility that parents still hold. Mahmoud v. Taylor (2025) (applying Yoder as "embod[ying] a principle of general applicability"). The role of a parent includes a duty to recognize symptoms of illness and to seek medical advice. Parham v. J.R. These rights are protected by the First and Fourteenth Amendments to the Constitution. Troxel v. Granville (2000) ("It 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."). Fortunately, the natural bonds of affection normally lead parents to act in the best interests of their child. Parham.
With these longstanding principles in mind, this case presents the following four questions about a parent's rights to information as against a public school's policy of secrecy when it comes to a student's gender identification. First, do parents have a right to gender information based on the Fourteenth Amendment's substantive due process clause? Second, do parents have a right to gender information protected by the First Amendment's free exercise of religion clause? Third, do religious public school teachers have a right to provide gender information to parents based on the First Amendment's free exercise clause? Fourth, do public school teachers have a right to communicate accurate gender information to parents based on the First Amendment free speech clause? In each case, this Court concludes that, as a matter of law, the answer is "yes." Parents have a right to receive gender information and teachers have a right to provide to parents accurate information about a child's gender identity.
Historically, school teachers informed parents of physical injuries or questions about a student's health and well-being. For example, where an eight-year old student is sexually assaulted at school, the school owes a duty to inform the parents. Phyllis P. v. Superior Court (1986) ("We hold that such a special relationship exists here between defendants and petitioner, and defendants had a duty to notify petitioner upon learning of the first series of sexual assaults upon [the student]."). But for something as significant as a student's expressed change of gender, California public school parents end up left in the dark. When it comes to a student's change in gender identity, California state policymakers apparently do not trust parents to do the right thing for their child. So, the state purposefully interferes with a parent's access to meaningful information about their child's gender identity choices. The state does this by prohibiting public school teachers from informing parents. The State Defendants explain that these policies are needed to prevent bullying and harassment. Preventing student bullying and harassment in school is a laudable goal. The problem is that the parent exclusion policies seem to presume that it is the parents that will be the harassers from whom students need to be protected.
Even if the State Defendants could demonstrate that excluding parents was good policy on some level, such a policy cannot be implemented at the expense of parents' constitutional rights. The difficult and long lasting issues of gender nonconformity leave parents to suffer adverse consequences over a lifetime. The State Defendants, on the other hand, have no personal investment in a student's health and the State Defendants will not be exposed to a lifetime of a student's mental health issues. Instead, that will be the parents' grief to bear alone.
If parents were informed early on (as is their right) after a student says or dresses in a way that suggests a non-conforming gender identity, four of the five probable outcomes will be positive. One, the parents might fully affirm their child's new gender identity. According to the defense experts, this is the best possible outcome of having the child's gender identity affirmed in both school and home life. "Depends on the reactions of the family. But in situations where they are supported and not rejected, they fare better, yes." Deposition Transcript of Dr. Christine Brady, Dkt. 243-7, at 209; Deposition Transcript of Dr. Erica Anderson, Ph.D, Dkt 247-10, at 25 ("And – and the scientific literature confirms that children grow up healthy and happy when they are supported by the adults and caregivers in their lives."); Id. at 123 ("This is a well-known view of people in the field, which is that children who are supported by their families do better than those who are not.").
Two, the parents might arrange health care from clinicians like Dr. Szajnberg, Dr. Brady, Dr. Anderson, or Darlene Tando, to help the child work through issues therapeutically. Once again, this is a good outcome according to the defense experts because the child can be authentic and supported in both school and home life.
Three, the parents might not take a position while waiting to see if the child's gender identity persists over time. Still, the child can be authentic at school and in home life and at least one third of young children eventually de-transition with time. Deposition Transcript of Dr. Christine Brady, Dkt. 243-7, at 84-86.
Four, although they love their child, the parents might disagree completely. "Parents – in my vast experience with … thousands of families over a long career, parents love their children. They want what's best for them. Do parents always agree with every decision of their children? No. Do they have good reasons? Almost always." Deposition Transcript of Dr. Erica Anderson, Ph.D, Dkt 247-10, at 52. Even the defense experts agree that parental disagreement is a valid reaction.
Q. And so just to—just because a parent is not immediately affirming that doesn't mean they don't love their child, correct?
A. Yes.
Q. And that does not mean they'll buse their child, correct?
A. I can't guarantee that.
Q. It doesn't necessarily mean that. You would agree, correct?
A. Correct.Deposition Transcript of Darlene Tando, LMFT, Dkt. 243-3, at 245.
Overall, it is a grave mistake to deprive parents of information about their child's gender at school, according to Dr. Anderson: "My objection is depriving parents of the knowledge of what's going on with their child's gender at school, particularly if the child chooses a different preferred name and pronouns and wants accommodations and that is information that is shared throughout the school by—by teachers, staff, and students. To deprive parents of that information is a grave mistake in my opinion." Deposition Transcript of Dr. Erica Anderson, Ph.D, Dkt 247-10, at 57. Disagreement is not abuse, and the court so finds. In contrast, adolescent social transitioning without parents usually results in serious problems for the adolescent. Dr. Anderson testified,
Q. Okay. Say with an adolescent. Are you aware of circumstances where in any context and adolescent has socially transitioned without the help or knowledge of their parents?
A. I am. And some of those cases involve kids in California. And the cases only come to my attention because there is a rupture and serious problems with the child.Deposition Transcript of Dr. Erica Anderson, Ph.D, Dkt 247-10, at 116.
Five. For the isolated instances where a parent or caregiver commits physical abuse on a child, there are mandatory reporting laws and a complete law enforcement and judicial system in place. Even there, "courts have recognized that a state has no interest in protecting children from their parents unless it has some definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse."
Three Supreme Court Justices recently described this issue as "a particularly contentious question," i.e., "whether a school district violates parents' fundamental rights when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process." Lee v Poudre (2025) (Alito, Thomas, Gorsuch) (statement respecting denial of certiorari). These Justices describe the question as one of "great and growing national importance."
The state bases its legal position on a derogation of the parents' federal constitutional right to care for and raise their children and an unwarranted aggrandizing of a student's state-created right to privacy. California's education policymakers may be experts on primary and secondary education but they would not receive top grades as students of Constitutional Law. They misapprehend the supremacy of federal constitutional rights. They misperceive federal constitutional rights belonging to parents as weak-kneed and frail and subservient to the student's right to privacy. Yet, under federal constitutional law, "parents [ ] retain a substantial, if not the dominant, role." Parham. How did they arrive at this miscalculation?
The State Defendants mix up legal constructs. The Attorney General on behalf of the State of California says Plaintiffs' lawsuit is "properly understood as seeking a federal constitutional exemption from the California constitutional right to privacy, as applied to gender identity in the school context." But the Attorney General gets it upside down. Plaintiffs do not ask the State to magnanimously permit a sort of federal constitutional exemption. What Plaintiffs seek is to force the State to respect their enduring federal constitutional rights as citizens of the United States….
