WASHINGTON — The Supreme Court broke new ground this month when it ruled the Constitution forbids school policies in California that prevent parents from being told about their child’s gender transition at school.
But the reach of this new parental right remains unclear.
Does it mean all parents have a right to be informed if their child is using a new name and pronouns at school?
Or is the right limited to parents who inquire and object to being “shut out of participation in decisions involving their children’s mental health,” as the high court said in Mirabelli vs. Bonta.
Both sides in this legal battle accuse the other of creating confusion and uncertainty. And that dispute has not subsided.
UC Davis law professor Aaron Tang says understanding the Supreme Court’s order calls for a close reading of the statewide injunction handed down by U.S. District Judge Roger Benitez in San Diego.
That order prohibits school employees from “misleading” or “lying” to parents. It did not say school officials and teachers had a duty to contact parents whenever they saw that a student changed their appearance or used a new name, he said.
By clearing this order to take effect, the Supreme Court’s decision “means that schools must tell parents the truth about their child’s gender presentation at school if the parents request that information,” Tang said.
“But the initial burden is on the parents. This is not a rule that schools have an affirmative obligation to inform any and all parents if their child is presenting as a different gender,” he said.
The high court’s 6-3 order also indicated the reach of the judge’s injunction was limited.
It “does not provide relief for all the parents of California public school students, but only those parents who object to the challenged policies or seek religious injunctions.”
Religious conservatives who sued say they seek to end “secret transition” policies that encourage students to adopt a new gender identity without their parents knowing about the change.
The lawsuit challenging California’s “parental exclusion” policies was first filed by two teachers in Escondido.
Peter Breen, an attorney for the Thomas More Society, said many of the parents in Escondido “had no clue” their children were undergoing a gender transition at school.
“We need to activate parents,” he said.
Ruling for them, Benitez said the state’s “parental exclusion policies are designed to create a zone of secrecy around a school student who expresses gender incongruity.”
His injunction also said schools must notify their employees that “parents and guardians have a federal constitutional right to be informed if their public school child expresses gender incongruence.”
The Supreme Court’s order cited a dramatic example of nondisclosure.
Two parents who joined the suit had gone to parent-teacher meetings and learned only after their eighth-grade daughter attempted suicide that she had been presenting as a boy at school and suffered from gender dysphoria.
John Bursch, an attorney for Alliance Defending Freedom, argues the Supreme Court’s opinion goes further to empower parents.
“Fairly read, the Mirabelli opinion creates an affirmative obligation on school officials to disclose,” he said. “It’s consistent with the way [the court] describes the parental right: ‘the right not to be shut out of participation in decisions regarding their children’s mental health.’ School officials’ silence (rather than lying) is not notice to and is shutting out parents.”
“All that said, the California attorney general is obviously not getting that message,” Bursch said.
He said the Supreme Court needs to go beyond an emergency order and fully decide a case that squarely presents the issue of parents rights.
“School officials should not be socially transitioning children without parental notice and consent. Period,” he said.
He filed an appeal petition with the Supreme Court in a case from Massachusetts that dissenting Justice Elena Kagan described as a “carbon copy” of the California dispute.
It takes only four votes to grant review of a case, but since November, the justices have repeatedly considered the case of Foote vs. Ludlow and taken no action.
The case is set to be considered again on Friday in the court’s private conference.
Meanwhile, California Atty. Gen. Rob Bonta went back to the 9th Circuit Court of Appeals seeking a clarification to limit the potential sweep of Benitez’s order.
He objected to the part of the judge’s order that said schools must post a notice that “parents and guardians have a federal constitutional right to be informed if their public school student child expresses gender incongruence.”
Bonta said that goes beyond what the Supreme Court approved.
This “could be understood to suggest that public school officials have an affirmative constitutional duty to inform parents whenever they observe a student’s expression of ‘gender incongruence,’ effectively imposing a mandatory ‘see something, say something’ obligation in all circumstances,” he said.
But the 9th Circuit said it would not act until he first presented this request to Benitez.
Meanwhile, transgender rights advocates say the voices and the views of students have been ignored.
“This case has been about states’ and parents’ rights but students have been left out of the conversation. Their voices have not been heard at all,” said Andrew Ortiz, an attorney for the Transgender Law Center. “School should be a place where young people can feel safe and confident they can confide in a teacher.”
“We’re hearing about fear and anxiety,” said Jorge Reyes Salinas, communications director for Equality California, the nation’s largest statewide LGBTQ+ civil rights organization.
“There are students who are unable to speak with their parents. Teachers can encourage them to have a conversation with their parents. But this will weaken the trust they have in their teachers,” he said.
In the past, the court had been wary of reaching into the public schools to decide on education policies and the curriculum, but it took a significant step in that direction last year.
In a Maryland case, the court said religious parents had a right to “opt out” their young children from classes that read “LGBTQ+-inclusive” storybooks.
The 1st Amendment protects the “free exercise of religion” and “government schools … may not place unconstitutional burdens on religious exercise,” wrote Justice Samuel A. Alito, the lone conservative who attended public schools.
The same 6-3 majority cited that precedent to block California school policies that protect the privacy of students and “conceal” 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 it included a “subclass of parents” who objected without citing religion as the reason.
The justices ruled for them as a matter of parents’ rights.
“Parents — not the state — have primary authority with respect to the upbringing and education of children,” the court said.
That simple assertion touches on a sensitive issue for both the conservative and liberal wings of the court. It rests on the 14th Amendment’s clause that says no state may “deprive any person of life, liberty or property without due process of law.”
In the past, a liberal majority held that the protection for “liberty” included rights to contraceptives, abortion and same-sex marriages.
Conservatives fiercely objected to what was dubbed “substantive due process.”
In the California case, Kagan, speaking for the liberals in dissent, tweaked the conservatives for recognizing a new constitutional right without saying where it came from.
“Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court — and especially of the Members of today’s majority,” she wrote.
She noted that when the court struck down the right to abortion in the Dobbs case, Justice Clarence Thomas said he would go further and strike down all the rights that rest on “substantive due process.”
In response to Kagan, Justice Amy Coney Barrett filed a concurring opinion that staked out a moderate conservative position.
Since 1997, the court has said it would stand behind rights that were “deeply rooted in the nation’s history and tradition,” she wrote. That includes “a parent’s right to raise her child … and the right to participate in significant decisions about her child’s mental health.”
She said California’s “non-disclosure policy” is unconstitutional and violates the rights of parent because it applies “even if parents expressly ask for information about their child’s gender identification,” she wrote.
Chief Justice John G. Roberts and Justice Brett M. Kavanaugh signed on to her opinion.
While Kagan dissented on procedural grounds, she did not disagree with bottom-line outcome.
“California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line,” she said. “And that would entitle the parents, at the end of the day, to relief.”
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