Schools left wondering how to proceed after ruling on transitioning students

WASHINGTON— The Supreme Court broke new ground this month by ruling that the Constitution prohibits school policies in California that prevent parents from being informed about their child’s gender transition at school.

However, the scope of this new parental right remains unclear.

Does this mean that all parents have the right to be notified if their child uses a new name and pronouns at school?

Or is this right limited to parents who question and object to “exclusion from participation in decisions concerning their child’s mental health”? the supreme court said in the Mirabelli-Bonta case.

In this legal battle, each side accuses the other of creating confusion and uncertainty. And this disagreement has not abated.

UC Davis law professor Aaron Tang said understanding the Supreme Court’s decision requires a close reading of the statewide injunction issued by U.S. District Judge Roger Benitez in San Diego.

The order prohibits school employees from “misleading” or “lying” to parents. He said school officials and teachers have no duty to contact parents if they see a student changing his or her appearance or using a new name.

Clearing that order from taking effect, Tang said the Supreme Court’s ruling “means that schools must tell parents the truth about their child’s gender presentation at school if parents request that information.”

“But the initial burden is on the parents. It is not a rule that schools have a positive obligation to inform any parent if their child presents as a different gender,” he said.

The high court’s 6-3 decision also showed that the judge’s injunction was limited in scope.

This “does not provide relief for all parents of California public school students, only those parents who object to challenged policies or seek religious relief.”

The religious conservatives who filed the lawsuit say they want to end “stealth transition” policies that encourage students to adopt a new gender identity without their parents knowing about the change.

The lawsuit challenging California’s “parent exclusion” policies was first filed by two teachers in Escondido.

Peter Breen, attorney for the Thomas More Foundation, said many parents in Escondido “have no idea” their children are undergoing a gender transition at school.

“We need to mobilize mothers,” he said.

Benitez, who ruled on their behalf, said the state’s “parental exclusion policies are designed to create a zone of secrecy around a school student who expresses gender nonconformity.”

His injunction also said schools must inform employees that “parents and guardians have a federal constitutional right to be notified if their children in public school express gender nonconformity.”

A striking example of the principle of confidentiality was included in the Supreme Court’s decision.

Two parents involved in the case had gone to parent-teacher conferences and learned only after their eighth-grade daughter attempted suicide that she had presented as a boy at school and suffered from gender dysphoria.

John Bursch, an attorney with Alliance Defending Freedom, argues that the Supreme Court’s opinion further empowers parents.

“When read fairly, Mirabelli’s opinion creates an affirmative duty to disclose to school officials,” he said. “Consistent with the way [the court] defines parental rights as: ‘the right in order not to be excluded participation in decisions regarding their child’s mental health.’ School officials’ silence (rather than lying) will not go unnoticed and like that excluding parents.

“All of this clearly shows that the California attorney general did not get that message,” Bursch said.

He said the Supreme Court should go beyond the emergency order and fully decide a case that directly raises the issue of parental rights.

“School authorities should not allow social passage of children without notification and consent of parents. Period,” he said.

He filed an appeal with the Supreme Court in a Massachusetts case that dissenting Justice Elena Kagan described as a “carbon copy” of the California dispute.

Only four votes are required for a case to be reconsidered, but the justices have repeatedly considered the issue since November. Foote and Ludlow case and no action.

The case is scheduled to be heard again at the court’s special conference on Friday.

Meanwhile, California Atty. Gen. Rob Bonta went back to the 9th Circuit Court of Appeals seeking an explanation to limit the potential scope of Benitez’s order.

He objected to the part of the judge’s ruling that required schools to issue notice that “parents and guardians have a federal constitutional right to be notified if their public school children express gender nonconformity.”

Bonta said this goes beyond what the Supreme Court has approved.

This “can be understood to mean that public school officials have an affirmative constitutional duty to notify parents when they observe a student expressing ‘gender nonconformity,’ effectively imposing a mandatory ‘see something, say something’ obligation in all circumstances,” he said.

But the 9th Circuit said it could not act until Benitez first presented that request.

Meanwhile, transgender rights advocates say students’ voices and opinions are being ignored.

“This case was about the rights of states and parents, but students were left out of the conversation. Their voices were never heard,” said Andrew Ortiz, attorney for the Trans Law Center. “School should be a place where young people can feel safe and trust their teachers.”

“We hear the fear and anxiety,” said Jorge Reyes Salinas, communications director for Equality California, the largest LGBTQ+ civil rights organization nationwide.

“There are students who cannot talk to their parents. Teachers can encourage them to talk to their parents. But this weakens their trust in their teachers,” he said.

In the past, the court has been wary of turning to public schools to make decisions about education policies and curriculum, but last year it took a significant step in that direction.

In the Maryland caseReligious parents have the right to “opt out” their young children from classrooms where “LGBTQ+ inclusive” storybooks are read, the court has said.

Justice Samuel A. Alito, the only conservative to attend public schools, wrote that the 1st Amendment protects “the free exercise of religion” and that “public schools…shall not impose unconstitutional burdens on the exercise of religion.”

The same 6-3 majority cited precedent to block California school policies that protect students’ privacy and “hide” information from inquiring parents if the student does not consent.

But the California case went beyond the religious rights issue in the Maryland “opt-out” case because the case involved a “subclass of parents” who objected without citing religion as a reason.

The judges ruled for them as a matter of parental rights.

The court said, “The primary authority regarding the upbringing and education of children lies in the hands of the parents, not the state.”

This simple claim touches on a sensitive issue for both the conservative and liberal wings of the court. This is based on the clause of the 14th Amendment, which states that no state “shall deprive any person of life, liberty, or property, without due process of law.”

In the past, a liberal majority thought that the protection of “liberty” included the rights to birth control, abortion, and same-sex marriage.

Conservatives strongly opposed what was called “substantive due process.”

In the California case, Kagan, speaking on behalf of opposing liberals, fine-tuned conservatives to recognize a new constitutional right without saying where it came from.

“Anyone even remotely familiar with recent debates in constitutional law will understand why: Substantive due process has lately been unfavorable to the members of this Court, and especially to its present-day majority,” he wrote.

He noted that when the court struck down the right to an abortion in the Dobbs case, Justice Clarence Thomas went further and said he would strike down any right based on “substantial due process.”

In response to Kagan, Justice Amy Coney Barrett offered a concurring opinion that featured a moderate conservative stance.

He wrote that the court has said since 1997 that it will stand by rights “deeply rooted in the nation’s history and tradition.” This includes “a parent’s right to raise his or her child… and the right to participate in important decisions regarding his or her child’s mental health.”

He said California’s “privacy policy” is unconstitutional and violates parental rights because it applies “even if parents explicitly request information about their child’s gender identity.”

Chief Justice John G. Roberts and Justice Brett M. Kavanaugh signed his opinion.

Although Kagan objected on procedural grounds, she disagreed with the final outcome.

“California’s policy of depriving all parents of information critical to their children’s health and well-being would have crossed the constitutional line,” he said. “And that will give parents relief at the end of the day.”