California required school districts to hide students' gender confusion from parents in written policies and, after it got sued, in teacher training materials it hid from a court. 

The Supreme Court rejected the Golden State's claim that its practices balance parental rights with student welfare, granting an emergency application to reinstate a permanent injunction while the case proceeds at the 9th U.S. Circuit Court of Appeals.

Maine's Great Salt Bay School Board is hoping for better luck before the high court in a challenge to allegedly unwritten policies that contradict its on-the-books parental involvement requirements for gender-confused students.

The district opposes plaintiff Amber Lavigne's SCOTUS petition to review a 1st Circuit ruling that dismissed her lawsuit due to "obvious alternative explanations" for the social transitioning of her 13-year-old daughter rather than an "unwritten de facto policy," arguing her allegations were too vague to be heard in court and especially not SCOTUS at this stage.

The mother alleged school staff secretly addressed the girl as a male, a social transition, but also that an in-school social worker gave her chest binders to flatten her breasts, a medical intervention that can cause physical damage, showing its official policy was a ruse.

Lavigne's lawyers at the Goldwater Institute recently filed their reply, accusing the district of evading the core issue: "the Board can be held liable if it follows an unconstitutional policy" regardless of whether it's written or not.

Nineteen states led by South Carolina, a conservative think tank and a medical freedom advocacy group are backing Lavigne's petition, which first went before SCOTUS Feb. 20 with no action. (Justices often review petitions over several meetings before acting on them.)

The 1st Circuit transformed "plausibility pleading" into a "probability requirement" in violation of the SCOTUS precedent Twombly, a recurring problem in lower courts that has produced an "entrenched circuit split," reads the Manhattan Institute's friend-of-the-court brief.

This forces plaintiffs across "a wide range of constitutional issues" – among them free speech, economic freedom, property rights and racial discrimination – to "negate lawful explanations" before legal discovery and "invites courts to weigh competing inferences at the pleading stage," effectively putting a thumb on the scale for defendants, the brief also states.

It will be difficult to review the "substantive question of constitutionally guaranteed parental rights" without first addressing the split on pleading standards, the institute argued.

"The question presented is exceptionally important to the States," with so-called gender secrecy policies covering over 12 million students in 38 states by Defending Education's estimate, the GOP attorneys general's brief says.

Yet the appeals court, which got its first GOP-nominated judge in November, "avoided answering the important constitutional question presented here," the AGs said.

Their states need "clarity on this question so that legislatures, state boards of education, and local school districts can conform policies to federal law," the brief says. "Persistent avoidance by lower courts leaves States without binding guidance while disputes proliferate."

America's Frontline Doctors, known for its early opposition to COVID-19 orthodoxy, said in a brief focused on the medical issues in the case: "Desistance statistics and the weight of research show that the parental opinions in this case are most likely correct, and the school’s approach is medically contraindicated. This is about saving lives."

It deemed euphemisms for medicalized gender transitions "intentional distractions" from the reality of a "permanent Frankenstein-esque mutilation of a minor child’s healthy body," going into gruesome detail about sexual dysfunction and maintenance of constructed genitals.

Such procedures can preemptively sterilize a minor, prevent breastfeeding and cause "permanent and irreversible damage to facial, body and vocal structures," the brief says. "The majority of both sexes have lifelong anorgasmia."

Required to 'disprove benign explanations' without access to hidden evidence

The district mocked Lavigne's theory of its municipal liability and denied there was even a circuit split on pleading standards in its Feb. 23 opposition brief, meaning SCOTUS can't even review the underlying issue upon which the 1st Circuit dismissed the case or preempt lower courts by reviewing the alleged "deprivation of a constitutional right."

Lavigne was "unequivocal before the District Court that she did not challenge the underlying conduct of the school officials as the source of her constitutional injury, nor did she challenge" the school board's written guidelines, just the supposedly unwritten policy of withholding information from parents, the opposition says.

It approvingly cited the 1st Circuit's dismissal of Lavigne's evidence for an unwritten policy: the board's denial that the secret transitioning violated any policy or law, the principal's statement about "misunderstanding" laws on confidentiality between students and social workers, and the board renewing the social worker's contract.

Referring to its brief at the 1st Circuit, the district said "just because an employee engages in conduct that does not violate a school policy, that does not mean that such conduct is the policy or practice of the District," which would require a "logical leap."

Lavigne waited until her SCOTUS petition to make the "distinct legal argument" that "reliance on obvious, alternative explanations requires implausibility of a plaintiff’s own alternative explanation," and to invoke other appeals courts' precedents beyond the 1st Circuit, so the issue is not "properly presented for review" to SCOTUS, it said.

The mother noted her good timing in her reply brief, with SCOTUS having reinstated the permanent injunction against California's policies just four days earlier and a week after the district's opposition.

Great Salt Bay's practice is little different than California's in writing, and its "argument ignores both Petitioner’s theory of the case and the plain facts," her brief says.

Statements and actions by the board and superintendent show "the logical and certainly plausible explanation" for the girl's secret transitioning is an unwritten policy of "noninvolvement" of parents when their children have gender confusion, since written guidelines require involvement but the district says Lavigne's noninvolvement didn't violate the policy.

Echoing the "Catch-22" complaint in another parental rights challenge to school secrecy, the brief says the district blames Lavigne for not asking for information the school allegedly withheld from her "but never explains" how she'd know to ask whether a social worker had given her daughter chest binders or if staff were using a male name and pronouns for her.

The 1st Circuit instead forced her to prove her "claim was more likely than other explanations for the facts," when Twombly requires only a plausible cause of action and warns judges not to dismiss a suit even if "actual proof of those facts" seems "improbable" at that stage.

A complaint must "only allege sufficient factual matter to permit a reasonable inference of liability" under Twombly, whose "settled rule [is] that plausible factual allegations must be viewed in the light most favorable to the plaintiff," the Manhattan Institute brief says.

Yet many lower courts read it to authorize them to "choose between competing plausible accounts of the same conduct at the pleading stage," while others vet competing narratives through "discovery and … factfinders, not by judicial supposition."

The brief quotes from the recent SCOTUS First Amendment precedent Vullo, which exposed a New York regulator to liability for pressuring banks and insurance companies to eschew business with the National Rifle Association. Courts cannot credit "a government defendant’s claim that its actions were merely 'reasonable regulatory'" before legal discovery.

If plaintiffs are required to "disprove benign explanations that they don’t have the information to disprove" because a "defendant’s internal processes" shroud the "evidence of intent, ratification, or institutional motive," it's hard to imagine how the former would show liability under the Monell precedent Lavigne is arguing, the institute says.