A week after President Trump's nominees scolded their peers on the 9th U.S. Circuit Court of Appeals for allegedly ignoring the Supreme Court by upholding California's "implicit bias" training mandate in medical education, judges nominated by his Democratic predecessors came to Golden State's rescue again in another First Amendment challenge.

A three-judge panel granted an emergency stay requested by Attorney General Rob Bonta, Superintendent of Public Instruction Tony Thurmond and the California State Board of Education, blocking a permanent injunction against the state's so-called gender secrecy policies that muzzle teachers and hide students' gender identities from parents.

U.S. District Judge Roger Benitez, nominated by President George W. Bush, had greenlit a class-action lawsuit that covers all employees and parents in the state public education system. He later threatened to sanction officials for "misleading" him into believing California no longer enforced the policies so he would moot the case.

Judges Mary Murguia and Andrew Hurwitz, nominated by President Obama, and Judge Salvador Mendoza, nominated by President Biden, have "serious concerns" about the scope of the class certification and injunction, according to the opinion, issued without any judge claiming authorship. They also refused oral argument as the plaintiffs sought.

The panel accused Benitez, a repeated punching bag for Democratic Gov. Gavin Newsom, of conducting a slipshod analysis under the Federal Rules of Civil Procedure to certify the class, citing Justice Samuel Alito's concurrence in last summer's SCOTUS ruling shielding Trump's birthright citizenship executive order from lower courts' universal injunctions.

Alito, joined by Justice Clarence Thomas, had warned district judges not to view the ruling as "an invitation to certify nationwide classes without scrupulous adherence to the rigors of [FRCP's] Rule 23" as a means to keep issuing universal injunctions by another name.

The panel seemingly targeted Justice Thomas, a potentially clinching fourth vote for SCOTUS to accept the case for review, by alleging Benitez had stretched "substantive due process" far beyond SCOTUS precedents by granting parents the unabridged right to know about their children's "gender incongruence" and make decisions on how to respond.

The New Yorker profiled Thomas as a "pacesetter" for the court's conservatives soon after SCOTUS eliminated federal abortion rights, noting that his Dobbs concurrence called for eradicating the doctrine of substantive due process as inherently "oxymoronic" by granting unenumerated rights beyond the 14th Amendment's promise of procedural rights.

The opinion makes no mention of Benitez suggesting the state defendants tried to con him into mooting the case by moving the gender secrecy policies from a public FAQ page to a hidden teacher training module after the plaintiffs sued.

"The stay protects vulnerable students and avoids confusion for teachers and schools while we appeal the district court’s decision," Bonta's office wrote in an email to Just the News, thanking the judges for finding the state is likely to win on the merits. The injunction is "unnecessarily vague" and "far more sweeping than necessary to remedy the alleged harms."

Bonta's office repeatedly threatened school districts if they adopted "the reasoning" of Benitez's 2023 preliminary injunction against Escondido Union School District, where the original plaintiffs Elizabeth Mirabelli and Lori Ann West taught, and even ordered EUSD to limit the injunction to those two teachers, according to their lawyers.

The Thomas More Society, also representing several more teachers and parents of gender-confused children using pseudonyms to protect them from repercussions like Mirabelli and West endured, said it expects to file a request for full-court review by the 29-judge 9th Circuit and an emergency request to SCOTUS to stay the panel's emergency stay.

While the panel "misapplied both the facts and the law," special counsel Paul Jonna said the case "will likely need to be settled" by SCOTUS regardless of the stay, to reaffirm parents' fundamental right "to direct their children’s upbringing" and teachers' "constitutional right to communicate honestly with parents" and not violate their faith. 

(The permanent injunction also banned officials from overriding an "employee’s conscientious or religious objection" to using students' preferred names and pronouns, given that plaintiff-teachers argued such usage forced them to violate their faith.)

The Democratic nominees' order hews closely to subject matter that may make it easier for SCOTUS to ignore it, namely the injunctive scope, "dubious class certification" and alleged expansion of substantive due process.

Federal courts nationwide have struck down litigation against parental exclusion policies for lack of legal standing, including two challenges to California's AB 1955 by parents whose "own child’s factual circumstance[s]" were not implicated by the law, the panel said. 

It noted SCOTUS overturned the 9th Circuit in 2011 in a pay discrimination lawsuit by five female employees against Walmart, in which the appeals court "three times upheld the class certification" for 1.5 million female employees. 

The late Justice Antonin Scalia's majority opinion said there couldn't possibly be "some glue holding together" every employment decision involving a female worker.

Benitez also did not "clearly identify the set of policies" that supposedly categorically ban parental notification for gender incongruence, the panel said, noting that Bonta's guidance allows disclosure "to protect the student’s wellbeing" and an education regulation on privacy in school counseling has a similar "clear danger" exception.

The panel cited a similar case from the 1st Circuit, which had no Republican nominees for three years until last fall. That panel ruled nearly a year ago that the due process clause does not guarantee parents "a preferred educational experience" for their children, including the right to disclosure of gender incongruence.

Contradicting Benitez on the inherent psychological relevance of addressing a student by preferred name and pronouns, the 1st Circuit said "something people routinely do with one another, and which requires no special training, skill, medication, or technology," cannot be a form of medical treatment triggering substantive due process. 

While Benitez had distinguished the case because it involved alleged misrepresentation by school officials, the 9th Circuit panel said the challenged policies were "analogous," so the state defendants "have made a strong showing" that Benitez likely botched his analysis.

The final section of the order could prompt SCOTUS interest by challenging Benitez's analysis of the free exercise claims by the teachers and parents, even though the panel said they weren't needed to issue the emergency stay.

The recent SCOTUS precedent Mahmoud, which ordered school districts to notify and let parents opt out of LGBTQ curricula, does not apply to California's policies because it's limited to "uniquely coercive 'curricular requirements,'" the order said, quoting a 6th Circuit ruling that "general operational policies that involve no instruction" don't implicate Mahmoud.

"Here, the challenged policies appear to apply only when a student makes the voluntary decision to share their gender nonconformity with the school," the 9th Circuit said, conflating two concepts: flouting of sex stereotypes and identification as the opposite sex.

The teachers' free exercise is also not impinged because "the district court’s premise – that these policies categorically forbid disclosure of information – is contradicted by the record," the panel said, referring to the emergency exceptions.