California seeks 'end-run' around Supreme Court to reinstate 'gender secrecy' policies: parents

California was having a nice dance with the 9th U.S. Circuit Court of Appeals when the Supreme Court cut in, reinstating a permanent injunction against its so-called gender secrecy policies in public schools by U.S. District Judge Roger Benitez after a full proceeding.

Now the Golden State is trying to get its favored dance partner back, urging the 9th Circuit to edit Benitez's order after unsuccessfully blocking it so that California can protect gender-confused students from undefined parental "abuse" and withhold notice of parents' rights "to be informed if their public school student child expresses gender incongruence."

The parent-plaintiffs' lawyers accused California of ignoring clear orders from SCOTUS and told the 9th Circuit – reportedly the most overturned federal appellate court since 2007 – that it "lacks jurisdiction to modify" the high court's order earlier this month.

State Attorney General Rob Bonta's office is trying to pull a fast one on all three courts by invoking a precedent that pertains only to the 9th Circuit modifying its own orders, "not modifying an order to contradict a ruling of the Supreme Court," says the Thomas More Society's opposition Tuesday to the state's March 6 emergency motion.

Benitez offered to modify his order at a March 9 hearing to confirm that it didn't block state action against "unfit parents," as SCOTUS reiterated in its emergency order, but the state's attorneys refused, the opposition emphasizes.

"This injunction is intended to promote child safety by guaranteeing fit parents a role in some of the most consequential decisions of their children’s lives while permitting the State to shield children from unfit parents by enforcing child-abuse laws in cases of compelling need," Benitez's proposed addition reads.

Bonta's Tuesday response said California "appreciate[s]" the proposed addition but is "not prepared" to withdraw the 9th Circuit emergency motion "at this time."

"That tells you everything about what their latest legal maneuver is really about … seeking an end-run around the Supreme Court," Thomas More Society special counsel Paul Jonna said in a press release.

It's not clear whether the 9th Circuit has acted on California's motion, which requested relief by Wednesday, as the official court docket system was not returning "case summary data" when Just the News checked Thursday afternoon. It does show the most recent docket entry was Wednesday morning.

The most recent entry on the parallel docket in Benitez's court, as reflected by the Free Law Project, was also Wednesday, the filing of the transcript from the March 9 hearing.

Why notify parents when they 'may very well know' already?

SCOTUS acted on the society's emergency petition, on its so-called shadow docket, after complaints by more conservative justices that the high court was giving lower courts free rein to flagrantly violate its precedents. 

The six-justice majority said the 9th Circuit wrongly limited its 2025 parental rights precedent Mahmoud to curricular decisions and that lower courts generally were passing over a century of sweeping parental rights precedents.

But University of South Carolina law professor Derek Black sees wiggle room in the reinstated permanent injunction for keeping parents in the dark about their children.

He told Chalkbeat that school districts could plausibly withhold notice unless parents directly ask whether their children are identifying as the opposite sex and the school is treating them as such, a "Catch-22" situation at issue in curricular litigation similar to last summer's Mahmoud.

SCOTUS didn't necessarily require districts "to get on the phone and say, ‘Hey, did you know that Jane is going by John now?’” Black said, which would be "kind of absurd" because "parents may very well know" their children identify as the opposite sex without school notice.

Black claimed SCOTUS created confusion by denying parental rights when it upheld Tennessee's ban on so-called gender-affirming care for minors, which reaffirmed state legislative judgments about medical treatment based on age and "medical use," such as authorizing puberty blockers for precocious puberty but not gender confusion.

The majority, however, questioned whether parents could give "informed consent" to their children's "sex-transition treatments," as the opinion unscientifically described procedures intended to resemble the opposite sex. 

Parents are routinely subjected to perceived "emotional blackmail" by providers who claim denying gender-affirming care increases their children's risk of suicide, so states may "reasonably question" whether their consent is "valid and consistent with ethical principles," the majority said in a lengthy footnote.

It cited a 2024 New York Times column about detransitioners and the record from the unsuccessful challenge to Alabama's ban in the 5th Circuit.

California opposes 'see something, say something' mandate

California Deputy Solicitor General Julie Veroff's emergency motion to the 9th Circuit said "of course" the state respects the SCOTUS order and is "complying with the terms of the injunction," but that Benitez's order was "inconsistent with the reasoning" of SCOTUS's.

In a move the Thomas More Society portrayed as a bait-and-switch, Veroff said the 9th Circuit precedent Mi Familia Vota authorizes it to "modify its stay order" – which SCOTUS explicitly vacated regarding the parent-plaintiffs – "to clarify the terms of the permanent injunction that are now in effect and the terms that remain stayed pending appeal."

This will help California entities "understand their obligations" and "mitigate confusion among public school employees and avoid unintended harm to students," Veroff said.

The 9th Circuit should confirm Benitez's injunction cannot compel disclosure of students' gender confusion to "parents who would engage in abuse" – the narrowly tailored option SCOTUS said California rejected – since the injunction "does not expressly" provide exceptions for when school employees know parents would abuse their children.

The appeals court should also confirm Benitez's parental notice requirement is stayed pending appeal, because it "could be understood" to impose a "see something, stay something" obligation on school staff "in all circumstances" when SCOTUS limited the injunction to "parents who object to the challenged policies or seek religious exemptions," Veroff said.

She suggested alternate language if the 9th Circuit doesn't stay Benitez's notice requirement, incorporating SCOTUS language about parents "who object" to gender secrecy and withholding notice to parents "who would engage in abuse."

Veroff is in fact saying the SCOTUS order contradicts its own reasoning, the plaintiffs' opposition says. It noted the concurrence by three justices, which said the parents are "entitled to the benefit of the judgment entered by" Benitez while California's appeal proceeds.

Bonta's deputy directed the emergency motion "to the wrong court," the 9th Circuit, whose January 5 stay order "is no more as to the parents" and March 3 order implementing the SCOTUS order vacating that stay is merely "ministerial," the opposition says.

SCOTUS precedent is clear that California must seek Rule 44 relief directly from the high court, as the "doctrine of law-of-the-case" prevents both "express holdings" and "issues decided by necessary implications" from being "relitigated" in a lower court.

"Whether styled as a 'clarification' or a 'modification,' the practical effect is to alter a Supreme Court order, which this Court has no authority to do," the opposition says.

The Mi Familia precedent invoked by California "involved a panel modifying its own prior interlocutory order on its own authority–not modifying an order to contradict a ruling of the Supreme Court," when the latter has already vacated the stay order on the parents.

California ignored the Federal Rules of Civil Procedure by running to the 9th Circuit for "relief in the first instance" rather than asking Benitez to modify his order, which still is "subject to the constraint that it not contravene the Supreme Court’s holdings," the opposition says.

It accused the state of repeatedly ignoring the court record, including from a transgender child psychologist, that parental refusal to affirm gender confusion is not "abuse" and that parental exclusion from social transition leads to "worse outcomes" for children.

SCOTUS rejected California's framing of the "no-exceptions" injunction and "found that existing child-protection mechanisms – mandatory reporting laws, dependency proceedings, removal authority – operate alongside the injunction," affirming Benitez's factual findings.

California also misconstrued SCOTUS's criticism of "blanket non-disclosure" policy, when less restrictive alternatives would protect children from abuse, as "an invitation to modify the injunction," the opposition says. The emergency motion "entirely ignores the passage with the actual holding of the Court."