A group of California parents has asked the U.S. Supreme Court to reinstate a federal district court decision that said parents have a federal constitutional right to be informed by schools of any gender nonconformity and social transition by their children.
A federal appeals court earlier this month blocked the district court decision, calling it and likely wrong on the merits.
The pause by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reinstated a mandate by the California Department of Education that restrains teachers and district staff members from informing parents about a child鈥檚 gender identity at school, unless the child consents.
鈥淐alifornia is requiring public schools to hide children鈥檚 expressed transgender status at school from their own parents鈥攊ncluding religious parents鈥攁nd to actively facilitate those children鈥檚 鈥榮ocial transition鈥� over their parents鈥� express objections,鈥� the challengers say in .
The high court filing notes that the parents, who are represented by the conservative legal organization Thomas More Society, have also asked a larger panel of the 9th Circuit to review the pause.
鈥淏ut California parents鈥� religious and fundamental parental rights鈥攁nd the health and safety of their children鈥攁re too precious for them to delay seeking relief from this court,鈥� the filing says.
Justice Elena Kagan, who handles emergency requests from the 9th Circuit, gave the state until Jan. 21 to reply. She could then rule on the emergency request herself or refer it to the full court.
A broad class action of California parents and teachers
U.S. District Judge Roger T. Benitez of San Diego said that state and local 鈥減arental exclusion policies鈥� are 鈥渄esigned to create a zone of secrecy around a school student who expresses gender incongruity.鈥�
The district judge said the Supreme Court last year reaffirmed parental rights in education in its decision in , which held that parents have a First Amendment free exercise of religion right to exclude their children from public school lessons on gender identity and sexual orientation.
Benitez said parental-exclusion policies deprive parents of the opportunity to decide for themselves and their child whether to pursue 鈥減sychological counseling, psychiatric care, gender-affirming care, family acceptance, or something else.鈥�
The judge separately ruled that teachers who raised objections to the parental exclusion policies have First Amendment free speech and free exercise of religion rights to notify parents about their students鈥� gender issues.
Benitez certified the challenge as a class action and allowed any parent or public school employee objecting to such policies on religious grounds to submit an opt-out form.
California Attorney General Rob Bonta, a Democrat, asked the 9th Circuit to block the judge鈥檚 decision, which the court did on Jan. 9. The panel said the certified class was too sweeping and that Benitez had failed to identify the specific policies he was blocking, since the state does not, in all circumstances, forbid disclosure of students鈥� gender-identity information to parents.
The Supreme Court filing by the challenging parents highlights the allegations of one challenging family, identified as the Poes. The parents say their middle school daughter was treated as a boy at school for most of a year, before they found out when the child attempted suicide. Even a new public school refused to communicate with the parents about the child鈥檚 gender identity, citing the state-mandated parental-exclusion policies, the filing says.
鈥淭o this day, the Poes continue to be left in the dark regarding their daughter鈥檚 gender presentation at school,鈥� the filing says.
Lawyers for the challengers say the 9th Circuit panel wrongly viewed the Supreme Court鈥檚 Mahmoud decision allowing parental opt-outs based on religious beliefs as limited to curricular matters.
But 鈥渨hether a policy applies in the school classroom, lunchroom, or restroom, it may still substantially interfere with parents鈥� rights to instill in their children the principles of their faith,鈥� the filing states, quoting a judge from a similar case.
The filing notes that the Supreme Court is considering whether to take up other cases about schools鈥� interactions with parents over gender-identity issues, and it suggests the justices, 鈥済iven the importance and urgency of the issues,鈥� might want to grant full review of the California case at this early stage.
The court, at its private conference this Friday, will consider two pending appeals that raise similar issues. One is , involving a federal appeals court ruling that rejected a parental-rights challenge to a Massachusetts district鈥檚 gender-notification policy. The other is , in which another federal appeals court ruled against parents who alleged their district aided their child鈥檚 鈥渟ecret鈥� gender transition.
A decision about whether to take up those cases could come as soon as Friday, but the court may not decide right away.
