California teachers have filed an emergency appeal at the U.S. Supreme Court after an appeals court panel reinstated policies requiring teachers to hide students’ gender identities from their parents.
“Right now, California’s parental deception scheme is keeping families in the dark and causing irreparable harm. That’s why we’re asking the U.S. Supreme Court to intervene immediately,” Paul Jonna, a partner at LiMandri & Jonna LLP and special counsel for the Thomas More Society, said in a statement Thursday.
“The state is inserting itself unconstitutionally between parents and children, forcing schools to deceive families, and punishing teachers who tell the truth,” he added.
The Thomas More Society sued on behalf of teachers in the state who feared punishment if they refused to lie about a student’s gender identity. Parents and other teachers joined the lawsuit, challenging the Escondido Union School District’s policy hiding students’ gender identities from parents unless students consented to reveal them.
The teachers also sued the California Department of Education, which has a similar policy.
While a district court judge issued a permanent injunction blocking the schools from enforcing gender secrecy policies, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit granted the school district and the state a stay of the injunction Monday.
Also on Monday, Jonna said his team would “seek en banc rehearing before the full Ninth Circuit and simultaneously pursue review by the U.S. Supreme Court.”
The office of California Attorney General Rob Bonta, a Democrat, welcomed the appeals court’s decision Monday.
“We are pleased that the Ninth Circuit has agreed we are likely to succeed on appeal in arguing that the district court’s injunction is unnecessarily vague, far more sweeping than necessary to remedy the alleged harms, reliant on faulty readings of the policies at issue, and contrary to longstanding principles of constitutional law,” Bonta’s office told The Daily Signal Tuesday.
The Gender Secrecy Policy
Jonna represents Elizabeth Mirabelli and Lori Ann West, two teachers who sued their Escondido Union School District over Administrative Regulation 5145.3, the gender secrecy policy.
The policy mandates that teachers and school staff will immediately accept a student’s expressed gender identity and bars teachers from revealing the student’s claimed gender identity to parents or guardians unless the student consents to notifying them.
The teachers sued, claiming the policy violates their First Amendment right of free exercise of religion by forcing them to lie or face punishment.
Transgender advocates claim that revealing a student’s transgender identity to his or her parents might endanger the student, because parents might disagree, and such disagreement might lead the student to self-harm, even suicide.
There is little evidence that “affirming” a transgender identity leads to lower suicide rates, although the Food and Drug Administration has documented a higher suicide risk for those undergoing sex-rejecting procedures.
Judge Roger T. Benitez in the U.S. District Court for the Southern District of California ruled in favor of the teachers and issued a class-wide permanednt injunction blocking the school district, the state superintendent, and other officials from enforcing the gender secrecy policy.
Benitez ruled that the “parental exclusion” policy creates a “trifecta of harm”: harming the child who needs parental guidance; harming the parents by depriving them of their rights to care, guide, and make health care decisions for their children; and harming teachers by forcing them to violate their sincerely-held religious beliefs and forcing them to conceal information.
The judge cited nine Supreme Court rulings declaring that “parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children.”
The Ninth Circuit Ruling
The three-judge panel cited the recent Supreme Court ruling in Trump v. CASA, which limited court injunctions. The panel argued that Benitez had wrongfully certified a “class” of parents and teachers under procedural rules, thus circumventing the Supreme Court’s limits on injunctions in CASA.
Furthermore, the panel ruled that Benitez had wrongfully interpreted California’s gender secrecy policies. It noted that guidance from Attorney General Bonta states that schools can “allow disclosure when a student does not consent where there is a compelling need to do so to protect the student’s wellbeing.”
Yet this nuance in the policy may not obviate the concerns that schools, rather than parents, are making sensitive decisions.
The panel also held that using a student’s “chosen name and pronouns” does not constitute a “form of medical treatment that gives rise to a substantive due process claim.”
Dr. Stephen B. Levine, a psychiatrist and early proponent of transgender medical interventions, later came to the conclusion that these interventions may be harmful. He warned that “social transition”—the practice of referring to a student by a name and pronouns of the opposite sex—”is a powerful psychotherapeutic intervention that radically changes outcomes” and makes it far less likely that young people will “desist” from a transgender identity.”
Supreme Court Appeal
The teachers’ emergency appeal to the Supreme Court requests that the nation’s highest court reinstate the injunction against gender secrecy policies, or consider the appeal as a request to take up the case.
The Supreme Court often considers cases in which different appeals courts have handed down conflicting rulings; the teachers’ appeal claims that conflicting court rulings are emerging on this issue. Therefore, the court should consider the issue, the emergency filing states.
