Judge allows schools to withhold gender identity of students from their parents

The Constitution does not require public schools to notify parents when their children adopt a gender identity at odds with their sex or receive parental consent "before using alternative names and pronouns" for their children, according to a federal court in California.

U.S. District Judge John Mendez said he was observing judicial restraint by dismissing Aurora Regino's lawsuit alleging that Chico Unified School District actively hid from Regino her fifth-grade daughter's stated identification as a boy. The district said it was bound by state law that gives students the sole choice to disclose.

California may soon pose a new threat to parents who don't affirm their children's gender identity under a bill approaching the governor's desk.

Under "rational basis" review, a lower tier of judicial scrutiny, the district has shown a "legitimate state interest in creating a zone of protection for transgender students and those questioning their gender identity from adverse hostile reactions" such as domestic abuse and bullying, Mendez wrote. He refused to let Regino amend and refile.

The ruling comes amid nationwide battles at the state level over in-school transitions, which often precede the "gender affirming care" of puberty blockers, cross-sex hormones and surgical removals of genitals and breasts for gender-transition youth.

More than a thousand school districts have policies that "openly state" school personnel "can or should" not disclose to parents the gender identity of their child when it's at odds with their sex at birth, according to a running tally by Parents Defending Education, updated July 7. It commissioned a poll that found three-in-four voters support requiring parental consent.

When an Indiana school counselor confirmed her district does not disclose gender transitions from parents, she claimed it fired her in retaliation.

Rep. Doug Malfa (R-Calif.) cited Regino's lawsuit when introducing legislation to strip federal funding from school districts that take any action, social or medical, to transition students without parental consent. The bill hasn't moved in the Republican-controlled House committee on education.

The 6th U.S. Circuit Court of Appeals recently lifted an injunction against Tennessee's ban on gender affirming care for youth as the case proceeds, while the ACLU filed suit Thursday against Texas for its similar law. 

These states are following the lead of Europe, in which several countries have sharply pulled back treatment for children and medical researchers acknowledge the weak evidence base for interventions. A British Medical Journal investigation this year said the American consensus was ahead of the evidence.

A YouTube channel recently hid its year-old interview with a Portland physician who performs genital surgeries on minors after critics including conservative activist Chris Rufo publicized it. The purported full interview is on Twitter.

Oregon Health and Science University's Blair Peters admitted "no one's published" research on genital operations on "pubertally suppressed adolescents," which are especially challenging on young males because they have too little penile tissue to construct a vagina. He uses a "robot" to harvest skin from elsewhere.

Peters also discussed the thorny consent issues around removing sexual function in children who haven't experienced sexual pleasure.

"There's going to be a huge role for therapy" during the surgery process, he said, and this is "definitely something that we're going to learn a lot more about in the next five to 10 years as we're doing just increasing numbers of these cases."

4th Wave Now, a community of "pediatric transition skeptics," noted July 9 that the Peters video had been made private. Just the News found Twitter users sharing the YouTube video as recently as July 5.

Regino's lawsuit was unusual for the short duration of her daughter's gender confusion, only several weeks, which the mother learned because the girl told her grandmother.

The girl "wanted to talk to her mom" but school counselor Mandi Robertson "manipulated her into keeping her mom in the dark," according to the case page at the Center for American Liberty, which was founded by Republican super-lawyer Harmeet Dhillon and also is representing de-transitioners Kayla Lovdahl and Chloe Cole in lawsuits against Kaiser Permanente.

Robertson visited the girl's class regularly to ask students whether they thought their gender identity aligned with their sex, prompting the girl to start wondering if her "new feelings of anxiety and depression" were due to gender dysphoria, the suit alleges. 

Within "minutes" of the girl telling Robertson she "felt like a boy," the counselor was asking for her new name and pronouns rather than discussing her psychological issues. The girl "felt pressured" to go along, and Robertson took her back to class and instructed her teacher – and subsequently all personnel – how to address her, Regino claims.

No one in the district purportedly suggested the girl see a mental health professional, give her permission to "socially transition back" or tell her the "risks associated with graduated affirmative care," which often follows social transition. Regino says her daughter's now in counseling for the issues the district ignored.

Judge Mendez, who repeatedly misidentified Robertson as "Robinson," claimed the Supreme Court tied his hands with its high bar for 14th Amendment substantive due process challenges like Regino's asserting her rights as a parent. The George W. Bush nominee repeatedly cited her alleged failure to show "controlling authority."

None of her precedents "opine on whether the state has an affirmative duty" to notify parents or receive consent to treat their children as the opposite sex, including a similar case that turned on religious beliefs rather than parental rights, the judge said. Regino's claim that in-school social transitions are "medical treatment" is "conclusory."

She cited no cases suggesting a policy like the school district's "constitutes unwarranted interference in the parent-child relationship," Mendez wrote. It actually "refrains from interfering with the established parent-child relationship" by putting children's wishes first.

In that sense the policy is "reactive," he said, noting the counselor suggested the girl share her identity with "other family members first." The issue is not whether Regino's demands are a "good idea" but whether the "Constitution mandates such parental authority," Mendez wrote.