Judge approves class action against California 'gender secrecy' amid debate on transgenderism

As debate rages on the frequency of transgender identification in youth, California's pressure on public schools to hide students' gender identity at odds with sex from their parents is facing a mortal blow.

U.S. District Judge Roger Benitez certified a class and four subclasses Wednesday to challenge The Golden State's so-called gender secrecy practices, two and a half years after teachers Elizabeth Mirabelli and Lori Ann West sued Escondido Unified School District to stop muzzling them so they could inform parents about their children's in-school identities. 

The class covers all individuals who are "participating or will participate in California’s public education system, whether as employees or parents/guardians of students, without having to subject themselves to Parental Exclusion Policies." 

The subclasses – "appropriate where class members have separate and discrete legal claims" – cover employees who object to the policies or "submit a request for a religious exemption or opt-out to complying" with them, and parents or guardians with children in school who object or seek an exemption or opt-out.

It's the first such class certification on the subject in the nation, the plaintiffs' lawyers at the Thomas More Society told Just the News.

The order comes a month before a summary judgment hearing where Benitez could rule, without a trial, against the practices as a violation of parents' First and Fourteenth Amendment rights "to direct their children’s upbringing" and teachers' free speech and religious freedom rights, the public interest law firm said.

While Democratic Attorney General Rob Bonta, the State Board of Education and Superintendent of Public Instruction Tony Thurmond dispute forcing any school district to hide gender identity from parents, that didn't stop Benitez from certifying a class. 

The President George W. Bush nominee, repeatedly slurred by name by Democratic Gov. Gavin Newsom for other rulings, denied motions to dismiss by EUSD and state entities nine months ago. He noted the latter's threatening gestures against EUSD and other districts, including a lawsuit, after Benitez blocked EUSD from punishing Mirabelli and West.

The teachers were subsequently joined as plaintiffs by two more EUSD teachers who have taught transgender students and expect to teach more, and two sets of parents with "gender incongruent children," all using pseudonyms to protect them from what their lawyers called the "severe harassment and retaliation" experienced by Mirabelli and West.

Though state defendants claim California's supposed no-disclosure mandate came from "a nonexistent webpage that contained nonbinding guidance in a withdrawn FAQ," formerly issued by the state board, Benitez said "whether such a policy persists is a question to be decided on the merits in later proceedings, rather than at the class certification stage."

He rejected their argument that the state doesn't control "gender-identity disclosure" policies, "written or ad hoc," in more than 1,000 school districts, but simply verifies they comply with federal and state law including AB 1955, whose guidance replaced the FAQ page and claims the law simply bans schools from forcing employees to "out" students.

"California local school districts are ultimately state agents under state control," the judge said, citing 9th U.S. Circuit Court of Appeals and California Supreme Court precedents that allow California to "give its local agents more autonomy" rather than wholly exempting itself from making them "march to the beat of the State Defendants’ drums."

Citing surveys by the gender-critical Women's Liberation Front and Rasmussen on voter support for parental notification, and the state's own expert witness on how many students and teachers are in California public schools, Benitez concluded that "poll numbers, general knowledge, and common sense" make clear there are "thousands" of putative class members.

Given that the plaintiffs meet every test for certification, the state pivoted to the absence of "ascertainability" – meaning it would be "administratively impractical" to manage such a class – but this is a test the 9th Circuit has never required, according to Benitez.

Nonbinary identity 'arguably the gateway' to trans identity

The California order comes amid a cross-ideological dispute over the interpretation of various surveys on how students identify with regard to gender identity, kicked off by a Centre for Heterodox Social Science analysis that went viral among conservative writers and amplified even further by X owner Elon Musk.

University of Buckingham professor of politics Eric Kaufmann, who authored the report, claimed "trans identification is in free fall among the young" because the "share of students not identifying as male or female" had tanked since its peak in 2022-2023. 

He cited years of massive student surveys at the top research universities by the Foundation for Individual Rights and Expression, and campus surveys by Brown University's school newspaper in the Ivy League and Andover Phillips Academy, an elite prep school.

Critics seized on the representativeness of the surveys and Kaufmann's wide definition of "trans," with anti-gender transition activist Chris Elston calling it "unfortunately fake news" and detransitioner Maia Poet lamenting that "confident experts, pretty graphics, and emotionally compelling narratives" have rendered "our collective critical thinking skills … dead."

Investigative journalist Ben Ryan, who covers youth gender medicine, and San Diego State University psychologist Jean Twenge, known for her research on technology and youth depression, said the survey data spoke only to nonbinary identification and that Kaufmann based his conclusions on elite populations.

A 2024 study in Springer Nature's Sexuality Research and Social Policy found an uninterrupted spike in trans identification starting with young adults born in the mid-1990s, Ryan noted, and South African psychologist Vincent Diboni found a similar international spike for 13-19 year-olds. The gender-critical advocacy group summarized the debate as well.

Kaufmann responded to critics Friday, noting a wider survey set on sexual orientation showed "queer, questioning, bisexual, pansexual, asexual or other" orientation "has risen and fallen along the same trajectory." By contrast, the "traditional gay and lesbian category had a stable share" from the same time period, 2020-2025.

"Movement organizations and activists include non-binary under their definition of trans," and "so long as the share who tick a non-binary option is non-trivial, the non-binary category will be an indicator – even if somewhat muted -– of trans identification," Kaufmann wrote. 

Nonbinary is "arguably the gateway between conventional gender identification and transgender identification," he said. "Thus if non-binary is increasing, the pool from which binary trans individuals springs will increase, and the number who will fully transition will increase."

Kaufmann responded to progressive critics who faulted his methodology, such as not weighting the data. A weighted graph that made the rounds had red flags, showing "more volatility" and also sending the FIRE and individual campus surveys in "diametrically opposing" directions, he said, noting a critic later came around to Kaufmann's unweighted viewpoint.