Courts surprisingly unfriendly to California school districts that hide gender transitions

Of all the states in which school districts might fear legal trouble for keeping parents in the dark about their children's decision to identify as the opposite sex, solidly blue California seemed an unlikely candidate.

Yet federal courts in the Golden State are the setting for two of the biggest developments in the heated fight nationwide over student privacy versus parental involvement.

U.S. District Judge Roger Benitez issued a preliminary injunction Wednesday that prevents 16,000-student Escondido Union School District from forcing two teachers into "non-disclosure regarding a student’s newly expressed gender identification" when communicating with parents, or taking "any adverse employment actions" against them. It also applies to state defendants.

"Parental involvement is not optional for correct medical diagnosis of gender incongruence," Benitez wrote. He cited 100 years of Supreme Court precedent on parents' rights to "direct the education, health, and upbringing" of their children as well as a binding 9th U.S. Circuit Court of Appeals ruling just last year.

The injunction protects only plaintiffs Elizabeth Mirabelli and Lori Ann West, but it is "significant because we have almost no court decisions on this issue," California lawyer Laura Powell, whose suit against California's medical misinformation law may have played a role in its likely repeal, told Just the News.

"While the state is arguing that the constitution actually REQUIRES secrecy policies, a federal judge says the constitution PROHIBITS them," Powell wrote on X, referring to state Attorney General Rob Bonta's lawsuit against Chino Valley Unified School District's new parental notification policy on gender transitions. 

Bonta secured a temporary restraining order and told KCAL News he believes other Southern California districts with similar policies will be affected by the suit. Orange Unified, Rocklin Unified and Buckeye Union districts are considering or set to vote on such policies, according to The Center Square.

Judge Benitez first came to national attention for ruling against California's decades-old assault-weapons ban, a decision stayed by the 9th Circuit. 

With the Cuban-born judge reconsidering the ban under new Second Amendment precedent from the Supreme Court, Democratic Gov. Gavin Newsom denounced Benitez by name for handcuffing a 13-year-old girl to scare her away from doing drugs like her father who was in court.

Benitez's order Wednesday does not mince words.

If a student "suffers a life-threatening concussion while playing soccer … a sexual assault, or expresses suicidal thoughts, or expresses aggressive and threatening thoughts or behavior" at school, parents would have "a legal and federal constitutional right to be informed of and to direct decisions on medical treatment" for their child, he wrote.

These scenarios are fundamentally the same as as a student expressing "words or actions during class that may be the first visible sign that the child is dealing with gender incongruity or possibly gender dysphoria" that could have "significant, adverse, life-long social-emotional health consequences," the order reads.

Escondido Union's gender identity policy, known as AR 5145.3, was allegedly "adopted by school district administrative staff, without fanfare, and without opportunity for parental or public input," Benitez wrote, with the plaintiffs first learning about it during a February 2022 training.

It deems "discriminatory harassment" any nonconsensual sharing of a student's gender identity with their parents, and Mirabelli and West have "a well-founded fear" of punishment because the district refused their request for a religious accommodation, Benitez wrote.

The policy is not only "in tension" with constitutional district policies including a prohibition on "falsifying information" in school records, but also "dramatically inconsistent with respected medical opinions," he also wrote. 

The judge quoted transgender clinical psychologist Erica Anderson, who opposes "embarking upon a social transition based solely upon the self-attestation of the youth without consultation with parents" and approves of parents rejecting a social transition to "help their children avoid making bad decisions."

The first step should not be "immediate and unhesitating affirmance" but rather "a careful professional assessment by a mental health professional with expertise in child gender incongruence," Anderson said specifically of the district's policies. "Best mental health practices abhor activity that drives a wedge between parents and children, creating distrust and tension."

The district doesn't even have support from the two most recent "standards of care" from the World Professional Association for Transgender Health, which also says it is "appropriate for parents to decide whether to ‘allow’ a social transition for their children," Benitez wrote.

A California Department of Education spokesperson responded to a Just the News query to the defendants' lawyers, saying it can't comment on pending litigation. A district spokesperson told NBC San Diego it was "currently reviewing the decision."

Last month, the Spreckels Union School District paid Jessica Konen and her daughter Alicia $100,000 to settle their June 2022 lawsuit, according to their lawyers at the Center for American Liberty. 

The mother and daughter alleged the two Buena Vista Middle School teachers who ran the Equality Club started encouraging the girl at age 11 to identify first as bisexual, then as a boy and hide her new names and pronouns from her mother. They also completed a "gender support plan" with Alicia that the school then followed.

The Konens' lawyers did not answer a query seeking a copy of the settlement. The Los Angeles Times reported Sept. 2 a federal judge approved it Aug. 3, with Jessica and Alicia each receiving $48,000 and another $4,000 for the California Department of Health Care Services for incurred medical expenses.

The lawsuit by the mother and daughter, who is now 16, calls the experience "evil and horrible," and says they went public with their allegations in 2021 after seeing news reports about the same teachers, Lori Caldiera and Kelly Baraki.

The Epoch Times said it obtained a recording from a seminar led by Caldiera and Baraki at the California Teachers Association 2021 LGBTQ+ Issues Conference. 

They reportedly explained how they actively worked to hide from parents in the "conservative" community what the Equality Club was doing and who was attending – even changing its name to "You Be You" to minimize suspicion – and how they "stalked" students online and in person to recruit for the club. 

An external investigation largely cleared Caldiera and Baraki a year ago, months after they had already resigned due to "harassment" from the community, the San Francisco Chronicle reported. Their comments during the seminar "were not reliable evidence of their actual conduct" leading the club, the Dermyden Makus law firm review concluded.

Outside the courts, gender identity clinics for children are facing increasing pressure from lawmakers, former patients and their own staff. 

Washington University, in St. Louis, announced Sept. 11 its physicians will stop prescribing puberty blockers or cross-sex hormones to minors. A new Missouri law that gives minor patients a "legal claim" has created an "unacceptable liability" for the university and its providers, the announcement also said.

WUSTL's Transgender Center faced scrutiny from lawmakers and state Attorney General Andrew Bailey when its former case manager Jamie Reed, who married a transgender man, went public with allegations that the clinic rushed kids into pharmaceutical treatment, promoted transition as "the solution" for serious psychiatric issues and "downplayed the negative consequences."

The university itself confirmed some of Reed's claims, and a recent New York Times investigation confirmed nearly all of them.

Detransitioner Luka Hein sued the University of Nebraska Medical Center and individual physicians Wednesday for negligence by "[p]roceeding straight to breast amputation in a depressed, anxiety-ridden, gender-confused adolescent, who was incapable of understanding the lasting consequences of her decision" at age 16. She's also represented by the Center for American Liberty.

An "affirming" therapist diagnosed Hein with gender identity disorder after a single 55-minute session "and began steering her toward transgender medical treatment" at the clinic, ignoring Hein's diagnosed depression and generalized anxiety disorder, antipsychotic medication and traumatic encounters online with "an older man from out of state," the suit states.