A divided Supreme Court on Monday sided with California parents over the state in an emergency appeal involving parental notification of students’ gender nonconformity and social transition.
“California’s policies will likely not survive the strict scrutiny that Mahmoud demands,” the court said, referring to its 6-3 ruling last year in Mahmoud v. Taylor, in which the court sided with religious parents in Maryland who wanted to opt their children out of public school lessons with “LGBTQ+-inclusive” storybooks.
In Monday’s case from California, the high court noted that the state had argued that its policies protected student safety and privacy. But the court said the state “cut out the primary protectors of children’s best interests: their parents.” The court said the state’s safety interest “could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse.”
The court’s three Democratic appointees dissented. Justice Elena Kagan wrote a dissent criticizing the majority for “throwing over a State’s policy” in a hurried fashion at an early stage of litigation.
“A mere decade ago, this Court would never have granted relief in this posture,” Kagan wrote. She added parenthetically, “Indeed, I am confident that the plaintiffs would never have thought to ask, at this stage, for the Court’s involvement.”
The plaintiffs had alleged violations of their constitutional rights — specifically, teachers’ free speech and religious rights, as well as parents’ due process and religious rights. The Supreme Court said Monday that the emergency application was “granted as to the parents but is otherwise denied.”
In December, U.S. District Judge Roger Benitez, a George W. Bush appointee, granted an injunction barring the state from permitting or requiring school employees to mislead a parent or guardian about a student’s gender presentation at school, or to use a name or pronoun that doesn’t match their legal name and natal pronouns if their parent or guardian objected to such use. The injunction directed education training materials to say that parents and guardians have the right to be informed if a student expresses “gender incongruence.”
But in January, an appellate panel granted the state’s emergency request to halt the injunction. The panel of Democratic-appointed judges expressed “serious concerns” with the judge’s action that “covers every parent of California’s millions of public school students and every public school employee in the state.”
The appellate panel also said the judge had failed to clearly identify which “parental exclusion” policies he relied on when he concluded that the state was blocking teachers from informing parents of their child’s gender identity. The panel noted that the state doesn’t categorically bar disclosures, pointing to guidance that schools can disclose such information without student consent “where there is a compelling need to do so to protect the student’s wellbeing.”
The panel further disagreed with Benitez’s application of the Mahmoud precedent from Maryland. The panel said the judge “improperly extended the reasoning of Mahmoud to the instant case.”
Represented by the conservative Catholic legal group Thomas More Society, the plaintiffs emphasized the Mahmoud case in their emergency application to the justices. They wrote that the state is “requiring public schools to hide children’s expressed transgender status at school from their own parents — including religious parents — and to actively facilitate those children’s ‘social transition’ over their parents’ express objections, even after this Court’s recent decision” in that case.
“California parents (including religious parents) are suffering grievously under the state’s regime,” they wrote.
Opposing high court relief, state officials called Benitez’s order both ambiguous and sweeping, writing that it appeared to “categorically bar schools across the State from ever respecting a student’s desire for privacy about their gender identity or expression — or respecting a student’s request to be addressed by a particular name or pronouns — over a parent’s objection. The district court’s injunction would allow no exceptions, even for extreme cases where students or teachers reasonably fear that the student will suffer physical or mental abuse.”
State officials said the appellate panel “appropriately entered an interim stay pending appeal to prevent confusion, harm to students, and a massive change to the status quo.” They said they take a “nuanced, balanced approach,” limiting disclosure in some cases while even requiring it in others when there’s a serious threat to a child’s health or well-being.
In a final reply brief to the justices, the plaintiffs took issue with the state’s “nuanced, balanced” framing, writing that officials turned the law on its head by assuming parents to be unfit. The plaintiffs said California “balances” parental interests “like McDonald’s balances the cow’s.”
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