Arizona Parents' Bill of Rights Claim Over School's Concealment of Child's "In-School Gender Transition" Can Go Forward,

rules an Arizona appellate court, rejecting defendants' claims that the case was moot, and wasn't timely filed.

From Walden v. Mesa Unified School Dist. #4, decided last Tuesday by Arizona Court of Appeals Judge Michael J. Brown, joined by Judges Anni Hill Foster and Paul J. McMurdie:

The Guidelines {for Support of Transgender and Gender Nonconforming Students} [created by MPS, Mesa Public Schools] outline how to "provide support" to "a student [who is] transgender or gender nonconforming and consistently asserts at school a gender identity that is different from the student's sex assigned at birth." The version of the Guidelines in place during the 2022–23 school year included definitions of relevant terms and explanations of district policies addressing discrimination, harassment, privacy, and how to update a student's name or gender in the electronic student information system ("Synergy"). MPS also maintained two forms designed to be completed with the student—a checklist and a support plan—detailing how school staff could best address a particular student's needs.

The 2022–23 support plan included the following notice: "Parents/guardians will be notified if the student requests changes to Synergy." Absent a request for a name or gender change in Synergy, the support plan does not require parental notification that a student has completed a support plan. Emphasizing students' right to privacy, the support plan mandates that "[s]chool staff shall not disclose information that may reveal a student's transgender status or gender nonconforming presentation to others except as set forth on this form." Students could mark whether their gender identity could be shared with various groups, including "[s]chool leadership/administration," "[t]eachers and/or other school staff," or "[o]pen to all adults and peers." As of the filing of the Complaint, "MPS still uses the support plan at all schools." …

In October 2022, Doe learned that her child, a biological female named Megan (a pseudonym) was using the name Michael (a pseudonym) at the child's junior high school. In November, Doe contacted a teacher to ask about her child's name. Initially, the teacher declined to answer and directed Doe to speak with the principal but later confirmed that Megan "was known as Michael to all teachers and students at the school."

Doe attended a meeting with the school principal on December 5, 2022, which Doe describes in part as follows:

[T]he principal confirmed that the school knew that Megan used "Michael" as her chosen name and that the school allowed and encouraged this. The principal further informed [Doe] that the reason for the name change was Megan's uncertainty about her sexual and gender identity, that Megan had asked that she go by the name of "Michael" at school, and that this request had been conveyed to all of Megan's teachers….

The principal told [Doe] that when a student went by a nickname or other name different from her given name, MPS's student information system allowed the school to input the student's preferred name into [Synergy]. The principal also informed [Doe] that any such change made to the student information system would trigger an automatic alert to the student's parents and that if the school had changed Megan's preferred name to Michael in their electronic system, [Doe] would have been made aware of the name change.

The principal admitted that school personnel intentionally had not changed Megan's name in [Synergy] to avoid any notification being sent to [Doe] and that there were no plans to change Megan's name in [Synergy]. The principal told [Doe] that even if [she] had asked to be notified about any name changes, pronoun changes, or other choices related to a transgender identity by her child, it was official MPS policy not to tell parents and that school personnel would not notify [Doe] about any further developments related to these issues.

According to Doe, the principal did not further disclose to Doe "the content of Megan's discussions with the principal or other school personnel about gender and sexuality issues." Doe further alleged she

has been unable to obtain any records or information from the school that disclose the specific content of the discussions school personnel had with Megan about gender and sexuality. The principal and other school personnel appear to consider information about their discussions with Megan on gender and sexuality to be confidential, even as to Megan's parents. They have treated [Doe] as if they believe she does not have the right to know this information.

At the December 2022 meeting, Doe requested "that all school personnel stop[ ] using the name 'Michael' and instead refer[ ] to Megan by her given name." The principal directed Doe to contact MPS's general counsel if she wished to discuss the matter further. Doe called the general counsel and left a message but received no return call.

On February 9, 2023, Doe and Megan's father attended a meeting with most of Megan's teachers to discuss certain educational services. However, contrary to their earlier demand made to the principal, Megan's parents discovered that only one teacher referred to Megan by her given name, with the rest using the name Michael. Both parents "expressed their anger and frustration that school personnel had hidden Megan's in-school gender transition."

Doe also alleged that MPS's implementation of the Guidelines regarding Megan was dangerous, harmful, and unlawful for several reasons, including the following:

[S]chool employees encouraged Megan to lie to her parents and helped her to do so, which harmed the parent-child relationship and delayed Megan from receiving needed mental health counseling. Following the December 5, 2022 meeting with the principal, [Doe] became more completely aware of Megan's struggles. Consequently, [Doe] was able to talk to Megan with love and empathy about these issues and discuss how to resolve them. Furthermore, this led to Megan talking to her psychotherapist about these issues as well.

Within a month of [Doe]'s meeting with the principal and Megan being able to talk to her mother and mental health counselor, Megan's issues were completely resolved. Within a month, [Megan] no longer needed counseling. [Megan] is now very comfortable presenting herself as a female and using her given name and is thriving in high school.

If MPS employees had immediately contacted [Doe]—as required by law—when Megan first expressed concerns about her sexual and gender identity, she could have had those important discussions with her mother and her mental health counselor sooner and avoided many months of needless suffering. She also would have avoided the difficulty and hardship of de-transitioning back to presenting as a female and using the name "Megan" again….

Doe sued, and the trial court dismissed the case, in part on the grounds that "Doe lacks standing because her Complaint 'alleges a concern at her child's prior school that has been completely resolved' and thus Doe failed to allege a 'current case or controversy.'" But, applying Arizona state law, the court of appeals disagreed, in the process explaining how the Arizona Parents' Bill of Rights operates (something few Arizona appellate decisions had done so far):

The PBOR, adopted by the legislature in 2010, provides that "[t]he liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right," and a governmental entity "shall not infringe on these rights without demonstrating that the compelling governmental interest as applied to the child involved is of the highest order, is narrowly tailored and is not otherwise served by a less restrictive means." As pertinent here, the PBOR mandates that "[a]ll parental rights are exclusively reserved to a parent of a minor child without obstruction or interference from" any governmental entity, including the right to (1) "direct the education of the minor child," (2) "access and review all records relating to the minor child," (3) direct the child's "upbringing" and "moral or religious training," and (4) make "health care decisions." In 2022, the legislature amended § 1-602 to add subsections (E)–(G), which authorize parents to sue for violations of the PBOR. Except as limited by subsections (F) and (G), a governmental entity or official

shall not interfere with or usurp the fundamental right of parents to direct the upbringing, education, health care and mental health of their children. A parent may bring suit against a governmental entity or official … based on any violation of the statutory rights set forth in this chapter or any other action that interferes with or usurps the fundamental right of parents to direct the upbringing, education, health care and mental health of their children.

In any such action, the governmental entity or official "has the burden of proof to demonstrate both of the following:

1. That the interference or usurpation is essential to accomplish a compelling government interest of the highest order, as long recognized in the history and traditions of this state in the operation of its regulatory powers.
2. That the method of interference or usurpation used by the government is narrowly tailored and is not otherwise served by a less restrictive means.

"If the governmental entity or official is unsuccessful" in meeting those burdens, "the court shall grant appropriate relief, such as declaratory or injunctive relief, compensatory damages and attorney fees, based on the facts of the case and the law as applied to the facts."

The PBOR provides an explicit statutory basis for a parent to assert a claim against a school district or school official for interfering with their fundamental parental rights and imposes a substantial obligation on the governmental entity or official to justify the interference with or usurpation of those rights…. Pursuit of judicial remedies under the PBOR cannot be confined to a narrow question of whether a parent's concerns about the legal propriety of a specific factual circumstance have been resolved. If a policy that triggered those concerns remains in place, the PBOR expressly authorizes a suit to challenge the lawfulness of the policy.

Doe also has standing under Arizona's version of the Uniform Declaratory Judgments Act ("UDJA"), which states that "[a]ny person … whose rights, status or other legal relations are affected by a statute … may have determined any question of construction or validity arising under the … statute … and obtain a declaration of rights, status or other legal relations thereunder." …

Doe alleged statutory violations and other actions that either interfered with or usurped her parental authority under A.R.S. § 1-602(E). For example, she claimed that (1) MPS employees at Megan's school resisted efforts by Doe to learn details about her child's education and followed established procedures designed to prevent notifying parents of changes to a student's gender identity, (2) the support plan and checklist, as used in the 2022–23 school year, contained provisions designed to help a child evade notifying their parent of changes to their gender identity at school, (3) the support plan's privacy notice barred school employees from disclosing information about her child without any exception for parents, and (4) MPS tacitly encouraged or enabled students to "withhold information" from their parents in violation of A.R.S. § 1-602(C). Doe does not have to wait for additional violations of her fundamental right to parent to file suit. If the Guidelines are unlawful, she has the right under the PBOR and the UDJA to seek a judicial determination on whether MPS has interfered with or usurped her parental rights, and whether court intervention is appropriate to prevent further violations.

By pleading violations of various provisions of the PBOR, including "any other action" that interferes with or usurps her fundamental right to parent, Doe has shown there are justiciable controversies, and the relief she seeks is not merely advisory. And because Megan is currently enrolled in an MPS school, the issues are not moot.

The court of appeals also concluded that Doe's claims weren't barred by the one-year statute of limitations under the PBOR:

Doe first learned Megan was using the name Michael at school in October 2022. At the December 2022 meeting with the principal, Doe learned about the school's actions at issue here, including that the school "intentionally had not changed Megan's name in [Synergy] to avoid any notification being sent to" Doe. At that meeting, Doe requested that school personnel only refer to her child as Megan. The superior court considered Doe on notice of her potential injury on that date and thus considered her February 2024 complaint to be untimely. On de novo review, we view the record differently.

Accepting the truth of Doe's factual allegations, unbeknownst to her, MPS did not abide by her request, or at the least, inform her it would not do so. Instead, as Doe discovered at the February 9, 2023 meeting with most of Megan's teachers, all but one continued to refer to Doe's child as Michael. Ignoring a parent's express request to refer to a child by his or her given name, and hiding the issue from the parent, at the very least presents a legitimate issue of whether MPS violated the broad protections offered to parents under the PBOR, A.R.S. § 1-602(E) ("any other action"). Failing to abide by Doe's wishes was a second violation that triggered a new accrual date. Because Doe alleges she was unaware of MPS's concealment until the February meeting, at this stage of the proceedings we conclude her Complaint, filed on February 9, 2024, was timely under § 12-821….

The court dismissed, however, claims brought by a member of MPS's governing board, and also dismissed the claims against MPS's superintendent.

James K. Rogers (America First Legal Foundation) represents Doe.