Conservative Californians ask SCOTUS to allow forced outing of transgender students

A conservative legal group, representing parents and teachers in California, has filed an emergency appeal with the U.S. Supreme Court asking it to allow school officials to inform parents and guardians about a student’s transgender identity, including chosen name and pronouns, even without the student’s consent.

In 2016, the California Department of Education issued legal guidance advising school districts to “accept and respect a student’s assertion of their gender identity where the student expresses that identity at school,” to consult with the student about who can be informed of that identity, and to respect the limits the student places on disclosure except in “very rare” situations. In 2024, California became the first state to pass this guidance into law. Some other states have passed laws mandating or promoting forced outing of trans or all LGBTQ+ students.

Related: Forced outing leads to high depression rates among LGBTQ+ youth, yet legislation persists

Related: Judge blocks California school district’s transgender outing policy

In 2023, four teachers in the Escondido Union School District filed a federal lawsuit against the state policy, alleging it violated their rights to free speech and free exercise of religion. They are Elizabeth Mirabelli, Lori Ann West, and two teachers identified by the pseudonyms Jane Boe and Jane Roe, and they are represented by the Chicago-based Thomas More Society.

Of Mirabelli and West, the Thomas More Society says, “As Christians, they believe that God created their precious students as male and female — immutably and without mistake. But under EUSD’s Parental Exclusion Policies, they were forced to perpetuate a deeply immoral scheme of deception against parents with children who suffer from gender dysphoria.”

The suit was originally known as Mirabelli v. Olson, Mark Olson being president of the Escondido school board. Parents from other California school districts soon joined the suit; they said their children had gone through social transition at school without their knowledge. California Attorney General Rob Bonta was added as a defendant, so the case is now Mirabelli v. Bonta.

On December 22, U.S. District Judge Roger Benitez, an appointee of George W. Bush, granted a permanent injunction blocking the state policy. “Parents have a right to receive gender information and teachers have a right to provide to parents accurate information about a child’s gender identity,” he wrote. Benitez also certified the case as a class action, so his ruling covered all parents, students, and teachers in California public schools.

But on January 5, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction. The judges expressed doubts about the class action status and noted that teachers are allowed to disclose a student’s gender identity without the student’s consent “where there is a compelling need to do so to protect the student’s wellbeing,” quoting guidance from the attorney general.

“It is thus not clear from the district court’s order which particular policies are problematic, and it is doubtful that all of those policies categorically forbid disclosure of information,” the panel wrote. The judges also said the parents and teachers are unlikely to succeed on their constitutional claims.

The panel consisted of Mary H. Murguia, who is chief judge, and Andrew D. Hurwitz and Salvador Mendoza Jr. Murguia and Hurwitz were appointed by President Barack Obama, and Mendoza by President Joe Biden.

Three days after the appeals court’s ruling, the Thomas More Society and its clients filed an emergency application with the Supreme Court seeking a lift of the stay. They also asked for a rehearing of the case by the full Ninth Circuit, but, the application says, California parents’ “religious and fundamental parental rights — and the health and safety of their children — are too precious for them to delay seeking relief” from the Supreme Court.

The high court has not decided whether it will take the case. Justice Sonia Sotomayor has set January 21 as the deadline for California officials to deliver a response to the application.

The court is also considering whether to take a similar case out of Massachusetts, in which parents objected to the confidentiality policy regarding gender identity. The U.S. Court of Appeals for the First Circuit ruled against the parents in February.