California school policies to hide gender from parents 'likely unconstitutional'

A federal court ruling waved a caution flag on school district policies requiring teachers to hide student gender identity from parents after granting a temporary reprieve to two teachers who sued their school district over the rules.

The decision by the U.S. District Court for the Southern District of California last week to grant a preliminary injunction for the teachers comes as the state sues school districts for parental notification policies and highlights the murky legal grounds underpinning the state’s guidance school districts cite in creating gender identity policies.

Elizabeth Mirabelli and Lori Ann West teach middle school in the Escondido Union School District north of San Diego. In April, they sued the district’s board of education, the California State Board of Education, the California Department of Education and the state superintendent over gender privacy policies they say violate their First Amendment rights by requiring them to lie to parents.

“Parental involvement is essential to the healthy maturation of schoolchildren,” United States District Judge Roger Benitez said in his order last week. “The Escondido Union School District has adopted a policy without parent input that places a communication barrier between parents and teachers.”

The Thomas More Society represents the Christian teachers. According to Paul Jonna, special counsel for the public interest law firm, the teachers filed the lawsuit in April as a last resort after seeking accommodations from the school’s policy.

The policies led to school staff sharing lists of students with teachers, explaining what names and pronouns teachers should use when communicating with parents. One email from 2022 submitted as an exhibit shows many parents were unaware of their students’ preferred names and pronouns.

Jonna said the court granting a temporary injunction applies specifically to West and Mirabelli but should put school districts with similar policies intended to protect transgender students on alert.

“State or school districts are on notice that this is likely unconstitutional,” Jonna told Chalkboard. “You can’t get a temporary injunction unless there’s a likelihood of prevailing in a case.”

Jonna also said that the costs for taxpayers will continue to climb as legal fees stack up from school districts with policies that do not protect constitutional rights.

“These are costly for taxpayers in many cases,” Jonna said. They’re not learning their lesson. There was no need for litigation in this case. The school should have given accommodation to our clients.”

The school district did not respond to calls seeking comment.

Complicating the issue is the larger question of what protections transgender students and parents have under state and whether state guidance on student privacy is enforceable.

Lawyers for the Escondido Union School District said the school enacted the policy to hide gender information because an FAQ page on the State Board of Education says it is required.

“The state defendants maintain that the State Board of Education FAQs publication is not a state law but only attempts to describe state law,” Benitez wrote. “EUSD, on the other hand, considers itself bound by the statements in the FAQs publication as a matter of law.”

Benitez said California’s Attorney General Rob Bonta cited the FAQ in its complaint against the Chino Valley Unified School District last month.

As Chalkboard previously reported, Bonta’s office contends that Chino Valley’s “forced outing policy wrongfully endangers the physical, mental, and emotional well-being of non-conforming students who lack an accepting environment in the classroom and at home.”

Jonna said that the federal court order calls the legality of the state’s guidance on student privacy protections into question.

“The attorney general and others are making this a high priority, going after school districts,” Jonna said. “I’m hoping they’ll see the writing on the wall that these policies are unlawful.”