Schools were left wondering how they would proceed after the decision was made regarding transfer students

WASHINGTON – The Supreme Court broke new ground this month when it ruled that the Constitution prohibits school policies in California that prevent parents from being told about their child’s gender transition at school.

But the accessibility of this new parental right is still unclear.

Does it mean that all parents have the right to be informed if their child uses a new name and pronouns at school?

Or is the right limited to parents who question and object to “exclusion from participation in decisions involving the mental health of their children,” as the Supreme Court said in Mirabelli vs. See.

Both sides in this legal battle blame the other for creating confusion and uncertainty. And that argument isn’t over yet.

UC Davis law professor Aaron Tang says understanding the Supreme Court’s order requires a careful reading of the nationwide order issued by US District Judge Roger Benitez in San Diego.

That order prohibits school employees from “misleading” or “lying” to parents. He did not say that school officials and teachers have a duty to contact parents whenever they see a student change their appearance or use a new name, he said.

By overturning the order, the Supreme Court ruling “means that schools must tell parents the truth about their child’s gender presentation at school if parents request that information,” Tang said.

“But the first responsibility lies with the parents. This is not a law that schools have an affirmative responsibility to inform any parents if their child expresses a different gender,” he said.

The high court’s 6-3 order also indicated that the reach of the judge’s decision was limited.

“It does not provide relief to all parents of California public school students, but only those parents who reject the challenged policies or seek religious instruction.”

Conservatives suing say they want to end “secret transition” policies that encourage students to take on a new gender identity without their parents knowing about the change.

The lawsuit challenging California’s “parental opt-out” policies was first filed by two teachers in Escondido.

Peter Breen, an attorney for the Thomas More Society, said most Escondido parents “had no idea” their children were going through a gender transition at school.

“We have to wake up the parents,” he said.

Ruling them, Benitez said “the state’s parental exclusion policies are designed to create a secret environment around a school student who expresses non-sexuality.”

His order also said schools must inform their staff that “parents and guardians have a constitutional right to be informed if a public school child expresses gender non-conformity.”

The Supreme Court’s order provided a striking example of non-disclosure.

The two parents who joined the suit attended parent-teacher conferences and only found out after their eighth-grade daughter attempted suicide that she had been a boy at school and had gender dysphoria.

John Bursch, a lawyer for the Alliance Defending Freedom, says the Supreme Court’s opinion further empowers parents.

“If we’re reading it right, the Mirabelli opinion creates an obligation to ensure that school officials make disclosures,” he said. “It is in line with the road [the court] defines the right of a parent: ‘the right not to be shut out to participate in decisions about their children’s mental health.’ The silence of school officials (rather than lying) is also unwarranted is something to lock parents out.”

“All that said, the California attorney general is clearly not getting that message,” Bursch said.

He said the Supreme Court needs to override the emergency order and fully decide the case that clearly presents the issue of parental rights.

“School officials should not be changing children without parental notice and permission. It’s time,” he said.

He filed an appeal to the Supreme Court in a case from Massachusetts that dissenting Justice Elena Kagan described as a “carbon copy” of the California dispute.

Only four votes are needed to review a case, but since November, the justices have repeatedly considered the case of Foote vs. Ludlow also took no action.

The case will be considered again on Friday in a private conference of the court.

Meanwhile, California Atty. Gen. Rob Bonta returned to the 9th Circuit Court of Appeals seeking an explanation to limit the sweep of Benitez’s order.

He objected to the part of the judge’s order that said schools must send a notice that “parents and guardians have a constitutional right to be informed if their child attending a public school expresses gender non-conformity.”

Bonta said that goes beyond what the Supreme Court has approved.

This “could be understood to suggest that public school officials have an affirmative constitutional duty to notify parents whenever they see a student’s ‘non-sexist’ speech, effectively enforcing a ‘see something, say something’ obligation in all cases,” he said.

But the 9th Circuit said it would not act until it presented the request to Benitez for the first time.

Meanwhile, transgender rights advocates say students’ voices and ideas are being ignored.

“This case was about the rights of the states and the parents but the students were left out of the conversation. Their voices have not been heard at all,” said Andrew Ortiz, an attorney for the Transgender Law Center. “School should be a place where young people feel safe and confident that they can confide in the teacher.”

“We hear fear and anxiety,” said Jorge Reyes Salinas, director of communications for Equality California, the nation’s largest LGBTQ+ civil rights organization.

“There are students who cannot talk to their parents, teachers can encourage them to talk to their parents, but this will destroy their trust in their teachers,” he said.

In the past, the court has been wary of reaching out to public schools to decide on education policy and curriculum, but it took an important step in that direction last year.

In a Maryland case, the court said that religious parents have the right to “withdraw” their young children from classes that read “LGBTQ+-inclusive” media.

The First Amendment protects the “free exercise of religion” and “public schools … may not impose an unconstitutional burden on religious exercises,” wrote Justice Samuel A. Alito, the only conservative who attended public schools.

The same 6-3 majority cited that precedent for blocking California school policies that protect student privacy and “withhold” information from parents who ask if the student doesn’t consent.

But the California case trumped the religious rights issue in the “opt out” case in Maryland because it included a “class of parents” who objected without citing religion as a reason.

The judges decided it was a matter of parental rights.

“Parents – not the state – have the primary authority in relation to the upbringing and education of children,” the court said.

That simplistic assertion touches on a sensitive issue for both wings of the libertarian court. It is based on the 14th amendment clause which states that no government shall deprive any person of life, liberty or property without due process of law.

In the past, most liberals believed that “liberty” protections included the rights to contraception, abortion and same-sex marriage.

Conservatives strongly opposed what was called “due process.”

In the case of California, Kagan, speaking for the opposing liberals, used conservatives for recognizing a new constitutional right without saying where it came from.

“Anyone who is at all familiar with recent debates in constitutional law will understand why: Substantive process is not too late in the good plans of this Court – and especially in today’s majority,” he wrote.

He noted that when the court revoked the right to abortion in the Dobbs case, Justice Clarence Thomas said he would go ahead and strike down all rights based on “due process.”

In response to Kagan, Justice Amy Coney Barrett filed a similar opinion that expressed a more moderate position on the rule of law.

Since 1997, the court has said it will uphold rights that are “deeply rooted in the nation’s history and culture,” he wrote. That includes “the right of a parent to raise his child … and the right to participate in important decisions concerning his child’s mental health.”

He said California’s “nondisclosure” policy is unconstitutional and violates a parent’s rights because it applies “even when parents expressly request information about their child’s gender identity,” he wrote.

Chief Justice John G. Roberts and Justice Brett M. Kavanaugh signed his opinion.

While Kagan argued on procedural grounds, he did not argue on the substantive outcome.

“California’s policy, to deprive all parents of information important to the health and well-being of their children, would have violated the constitution,” he said. “And that will give parents an opportunity, at the end of the day, to be free.”