The Supreme Court’s ruling Monday affirming parents’ right to know about their child’s gender at school has left California educators with tough questions about how to protect the sometimes competing rights of students, school staff and family members.
The decision of the Supreme Court in the case of Mirabelli v. See, while we fall short of definitively deciding the case, we will have a significant impact because the majority of the court strongly agrees with the lower court’s interpretation of parental rights that differs from what is common in California.
“Ultimately, the issues are about parents’ right to information versus the state’s ability to protect children’s privacy rights,” said UC Berkeley law Professor Erwin Chemerinsky. “The court, 6-3, came down in favor of the former.”
The majority of the court sided with US District Judge Roger Benitez, based in San Diego County, and an appellate panel that stayed Benitez’s decision pending the outcome of the appeal. The Supreme Court’s action allows key parts of Benitez’s decision to take effect during the appeals process.
In his December 22 decision, Benitez ruled that parents have a federal constitutional right to know about LGBTQ+ issues affecting their children at school. In addition, he said teachers have free speech rights and freedom of religion to tell parents about their child’s gender if the teacher wants to do so. The case came from the teachers who were trying to assert this right. Parents joined the case later.
The Supreme Court did not remove the employee-related stay. Therefore, it is not clear what the teachers have the right to say to the parents who do not ask about this matter, say legal experts. However, if parents want to know, school staff must tell parents if, for example, a student is exploring a different gender identity at school.
Benitez’s first court order prohibits school districts from “misleading” parents related to “presenting their child’s gender at school.” School personnel are prohibited from “directly lying to a parent, denying a parent access to a child’s education records, or using a different set of pronouns/preferred words when speaking to parents than is used in the school.”
In addition, Benitez gave government officials 20 days to show that they have informed the school districts about the decision. That 20-day deadline was put on hold by an appeals court, but the countdown may have begun — or is about to.
The deadline puts immediate pressure on the California Department of Education to comply and — importantly — provide guidance to the state’s 1,000 school systems. But on Monday, the Department was not ready to do so, responding that it did not comment on the proceedings.
The office of state Attorney General Rob Bonta, which handled the request, expressed disappointment.
“We are committed to ensuring a safe and welcoming school environment for all students while respecting the important role parents play in students’ lives,” said the statement.
California school districts have been left in a difficult, dangerous legal situation, said Edgar Zazueta, executive director of the Assn. of California school administrators. State law, for example, prohibits a school district from forcing a teacher to “out” an LBGTQ+ student from the student’s parents against that student’s will.
“The Supreme Court’s action changes the current legal situation for school districts, but it does not resolve the broader legal questions at issue,” Zazueta said. “We urge government officials to provide timely guidance.”
The Governor’s office strongly condemned the court’s action.
“Teachers need to focus on teaching — they can’t be forced to be the sex police,” said Marissa Saldivar, a spokeswoman for Gov. Gavin Newsom.
Both sides say they emphasize student safety and parent involvement. Parental rights advocates maintain that threats to students are best dealt with by law enforcement and the courts. California lawmakers want to give teachers more discretion.
Supreme Court supports religious parents
In its decision, the majority of the Supreme Court had to decide what was most urgent while the case was still pending in the courts: extending the right of parents to control their children’s upbringing, including their religious instruction; giving teachers and other school staff the right to speak openly with parents about gender issues, or maintaining the current balance of student and parent rights as is done in California.
According to data cited in the preliminary ruling, at least 598 of the state’s 1,000 school systems have policies that limit what parents can be told about their child’s gender reveal at school — if the child requests confidentiality. State officials argued that the decision would create administrative chaos across California and threaten the privacy rights and living conditions of LGBTQ+ students without supportive families.
However, the greater urgency, the majority of the Court decided, is to protect the way parents choose to raise their children.
These parents “have sincere religious beliefs about gender and sexuality, and feel a religious obligation to raise their children in accordance with those beliefs,” the majority opinion said. “California’s policies violate those beliefs.” Also, the opinion said that parents should not be excluded from the important issue of mental health.
The court’s six conservatives were in the majority for the unsigned opinion, while three liberals dissented.
Justice Elena Kagan wrote in a dissent joined by Justice Ketanji Brown Jackson that the court received “little and insufficient information about the disputed legal issues.”
He added: “The application of the existing law in this case raises tricky questions … The Court is impatient: It already knows what it is thinking, and insists that everything be fixed quickly.”
Sharp differences in response
Analysts at the California Policy Center, a conservative think tank, say state officials would be wise to cross the line quickly.
Although the Supreme Court has not issued a final decision, CPC vice president Lance Christensen said, “the highest court in the land just telegraphed how they might rule. ”
Shannon Minter, legal director at the National Center for LGBTQ Rights, called the Supreme Court’s action “terrifying.”
“Without a full briefing or oral argument, the Court has successfully upheld the expulsion of transgender students from parents — even when the evidentiary record shows that disclosure threatens mental, emotional, and physical harm,” Minter said.
He added: “Schools adopt these privacy protections for a reason: because for some students, leaving home means harassment, rejection or worse.”
