On Sept. 14, 2023, Judge Roger Benitez of the United States District Court of the Southern District of California issued an order granting two teachers’ motion for preliminary injunction and denying the motions of the Escondido Union School District, the members of the California State Board of Education and the State Superintendent of Public Instruction to dismiss in the case of Mirabelli v. Olson. (Mirabelli v. Olson, 2023 WL 5976992, (S.D. Cal. Sept. 14, 2023).) As described in the July edition of California School News, the case involves a challenge by two teachers to the district’s Administrative Regulation 5145.3 (the policy), which requires student consent before a parent is informed of a student’s change in gender identity at school. The teachers’ challenge to the policy claims that it is unconstitutional because it violates their free speech and free exercise of religious rights.
Specifically, with regard to federal law and Constitutional rights, the court states, “The United States Supreme Court has historically and repeatedly declared that parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children” (page 15). These parental rights, according to the court, must also include the right to know when a student transitions genders at school. By requiring the two teachers to withhold information about a student’s gender from the parents, the court found that the teachers potentially have a strong free speech claim against the policy if they are being required to “violate the law or deliberately convey an illegal message” (page 23). The court did not decide this free speech claim because the consideration of a preliminary injunction does not require a determination on each claim. Rather, the determination is whether the plaintiffs are likely to be successful on their claims. Full consideration of the teachers’ free speech claims will come later.
In addition, the court found that, because the teachers hold sincere religious beliefs that include “that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children” and “that God forbids lying and deceit” (page 24), the teachers pled a strong enough free exercise of religion claim to obtain the preliminary injunction. The court found that although the teachers do not have to explicitly lie to parents themselves, when they refer parents to administrators for questions related to a student’s gender, unless the student has given consent, the parents will not have their question answered. Therefore, the information that the parents seek in order to exercise their God-given control over their children is “impossible for the parents to obtain from the school [and] [i]t is that aspect which infringes on the plaintiff’s free exercise of their religious beliefs” (page 24).
Further, the court held that the policy is not generally applicable to all staff in the district since it allows exemptions for parental notification based on “ad hoc determinations[s] of whether the parent receiving the information has a legitimate reason to be informed” (page 27). For this reason, the court determined that for the policy to be valid, it would have to satisfy the strict scrutiny legal standard and be narrowly tailored to achieve a compelling state interest, which the court found that the policy did not. The interest of protecting transgender and gender nonconforming students was “unconvincing” to the court (page 27) to be considered a compelling state interest and the district failed to show that it had “genuinely considered less restrictive measures than those implemented” (page 28).
With respect to state law, the court focused on a student’s gender transition as solely a medical process that requires parental consent. The court found that the medical emancipation statutes that allow for minors to receive treatments without parental consent in California do not include a gender transition and therefore parental consent is required. As to student privacy rights, the court stated that it seems unlikely that minors have the required “reasonable expectation of privacy” to their gender information after expressing their gender identity and requesting a new name and/or pronouns at school (page 18). Further, according to the court, there is ample case law that suggests that “a parent’s rights are superior to a child’s rights” (page 19).
Based on the free speech and free exercise rights of the teachers, the court granted the preliminary injunction prohibiting the district from enforcing the policy against these two teachers. The court also denied the district’s and both state defendants’ motions to dismiss. The court found that state defendants are clearly involved in this matter because the district relied on the California Department of Education FAQs related to student privacy rights and because the FAQs are being relied on by the state Attorney General in another lawsuit challenging a parental notification policy.
The decision in this case offers a very different analysis and outcome than what was found in another recent case related to parental notification and student privacy, Regino v. Staley. (2023 WL 2432920.) In that case, the United States District Court for the Eastern District upheld the policy (5145.3) also in question in Mirabelli and found that there was a legitimate state interest in the policy creating a “zone of protection” for transgender and gender nonconforming students by requiring student consent before notifying parents of their gender identity. A more detailed analysis of these two cases and their different holdings is forthcoming next week.
