California defends 'gender secrecy' policies before Supreme Court, calls injunction 'extreme'

California claims it balances parental rights with protections for transgender students by hiding the latter's gender transitions from the former, absent extraordinary circumstances. 

Parents suing the Golden State to end its so-called gender secrecy policies claim California "balances the parent’s interests like McDonald’s balances the cow’s."

The parties recently made their cases to the Supreme Court to either vacate or uphold a 9th U.S. Circuit Court of Appeals' ruling that temporarily blocks a lower court's ban on California's policies, Those policies, the plaintiffs say, keep parents in the dark about their children's gender confusion and muzzle teachers who want to tell parents about it.

California answered the plaintiffs' application to Justice Elena Kagan to scrap the "interlocutory stay" by the 9th Circuit on the permanent injunction by U.S. District Judge Roger Benitez, a President George W. Bush nominee who earlier certified the lawsuit as a class action and threatened to sanction California for "misleading" him into mooting the case.

The plaintiff parents and teachers then filed their reply, backed by friend-of-the-court briefs from several interest groups and red states.

The Thomas More Society, representing the plaintiffs, said the harm from blocking the injunction is not speculative, citing one pair of parent clients. Their daughter's school allegedly told them last fall it would keep addressing the minor girl by her preferred name and pronouns even after her attempted suicide, which followed a nearly a year of the school secretly transitioning her.

Another pair of parents belatedly learned their daughter's teachers were lying to them, and the school had socially transitioned her "as early as fifth grade," yet the school continues to keep them in the dark about "her current gender expression at school," the court filings say.

Despite two years of litigation and full discovery, "California produced no admissible evidence that parental involvement harms children" while burying its policies "behind a web of regulations, FAQs, and legal alerts" that Benitez compared to "wrestling with a bowl of Jell-O," the public interest law firm said.

"The state assumes parents are unfit, seizes unchecked authority over children, and forces schools into deception," special counsel Paul Jonna said. "This isn’t an argument about abstract laws and regulations. There are real lives at stake."

Parental involvement required when 'social environment' undermines religious beliefs

The plaintiffs' petition to Kagan accused the San Francisco-based 9th Circuit, until recent years the most overturned federal appeals court in America, of flouting the Supreme Court's new parental rights precedent Mahmoud, which blocked a suburban D.C. school district from teaching LGBTQ "storybooks" to young children without parental notice and opt-out.

The 9th Circuit applied "an unpublished, divided, Sixth Circuit decision that badly misread both Mahmoud and Yoder," an Amish homeschooling precedent upon which Mahmoud built, the petition says. Nothing in the new precedent affirms the appeals court's view that parental rights are limited to "religious burdens imposed by 'curricular requirements.'". 

Yoder explicitly mentioned the "social environment" of high school, not just the curriculum, as undermining the religious beliefs of Amish parents, requiring Wisconsin to meet the highest level of judicial scrutiny to force Amish teens into public school, the plaintiffs noted.

The state's expert witnesses actually undermined its own "safety rationale" for the policies under cross-examination, according to the petition. One said gender dysphoria and "mental health risks" can worsen when a child is addressed by "a chosen gender" in one environment but not another, which is exactly what California orders schools to do.

California's opposition to the emergency application accused Benitez of applying a one-size-fits-all rule that would harm children, but also falsely implied schools had leeway to decide when to inform parents about gender confusion. 

Under its anti-discrimination and privacy laws and constitutional provisions, "schools may balance parental interests with students’ particular needs and circumstances" around gender identity disclosure, yet Benitez seemed to "categorically" prohibit them from respecting student privacy or their preferred names and pronouns, Attorney General Rob Bonta said.

"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," and exceeds recent SCOTUS precedent on narrowly tailored injunctions, the opposition says.

Benitez also misunderstood the challenged state laws, which "allow, and even require, disclosure in certain circumstances—in particular, where there is a risk of serious harm to the student," according to Bonta. 

It was the AG's office, however, that repeatedly threatened school districts if they adopted "the reasoning" of Benitez's 2023 preliminary injunction against Escondido Union School District, where the original plaintiff teachers taught, making unambiguous to school districts they would face Bonta's wrath for disclosing gender identity outside of an emergency.

Finally, the plaintiffs didn't act as if they needed relief right away, withdrawing their request for a classwide preliminary injunction and litigating a new request for a permanent injunction "on an ordinary schedule that did not result in a hearing" for four months, Bonta said. They haven't asked for "expedited briefing and argument" at the 9th Circuit either.

The irreparable harm will fall on students and school employees "during the few months it takes to resolve the appeal" if the stay is lifted, with "irreversible" consequences for many students subject to non-consensual disclosure of their gender identity, Bonta said.

'Vignettes' of mothers victimized by gender secrecy policies

Florida, Montana and West Virginia told the Supreme Court that the 9th Circuit turned a "blind eye to harm done nationwide" by school policies that hide so-called social transitions, where students present as the opposite sex and are treated as such, from parents.

"Intervention of this kind is highly destructive and can lead to permanent damage to the child’s mental and physical health," counter the 9th Circuit's claim that the plaintiffs won't be "substantially injured" by the stay on the permanent injunction, they said. 

"Lower courts need clarity to resolve the increasing number of parental-rights disputes in this context," the red states said, referring to Defending Education statistics from last spring that documented around 1,200 school districts covering a quarter of all public school students with secret-transition policies. 

California, New York and New Jersey have pushed the envelope the furthest, with California even shielding school officials from liability for hiding a child's gender expression from "any other person" and punishment for actively "shap[ing] a child’s sexual identity away from parental supervision," the states said.

The Child and Parental Rights Campaign and Our Duty USA told SCOTUS in a joint brief the 9th Circuit abandoned "over 100 years of precedent" by letting schools exclude parents "based solely on speculation of potential harm or parental disagreement with the government’s chosen approach for their confused child."

Bonta and the Democrat-dominated Legislature have stymied parents at every turn, with a legislative committee refusing to hold a hearing on parental notification legislation by Our Duty, which says its members "skew left" politically, and Bonta going after school districts that sought to inform parents and seeking to tank a related ballot initiative, they said.

The brief includes several "vignettes" of mothers victimized by gender secrecy policies, some of whom became activists in response, including Our Duty President Erin Friday. The saddest may be Abigail Martinez, who has spoken of her daughter Yaeli's suicide after her school helped the girl escape her mother through false abuse claims and get "sex-rejecting interventions."