California schools BARRED from keeping students’ gender transition secret from parents: federal judge

In his Monday order, US District Court for the Southern District of California Judge Roger Benitez ruled that state and local officials were blocked from enforcing or implementing laws and guidance that require employees in the California state school system to mislead "the parent or guardian of a minor child in the education system about their child’s gender presentation at school, whether by: (i) directly lying to the parent; (ii) preventing the parent from accessing educational records of the child; or (iii) using a different set of preferred pronouns/names when speaking with the parents than is being used at school."

The order also blocks employees from using "a name or pronoun to refer to that child that do not match the child’s legal name and natal pronouns, where a child’s parent or legal guardian has communicated their objection to such use," and the use of such a name or pronoun "while concealing that social gender transition from the child’s parents, over the employee’s conscientious or religious objection."

The order blocks teachers, school administrators, counselors, and other staff from not informing parents "that his, her, or their child has manifested a form of gender incongruity such as changing preferred names or pronouns."

Benitez also ordered that a statement be prominently displayed in the state’s PRISM cultural competency training for educators that states: "Parents and guardians have a federal constitutional right to be informed if their public school student child expresses gender incongruence. Teachers and school staff have a federal constitutional right to accurately inform the parent or guardian of their student when the student expresses gender incongruence. These federal constitutional rights are superior to any state or local laws, state or local regulations, or state or local policies to the contrary."

In a 52-page opinion accompanying the order, Benitez wrote, "Historically, school teachers informed parents of physical injuries or questions about a student’s health and well-being. For example, where an eight-year-old student is sexually assaulted at school, the school owes a duty to inform the parents … But for something as significant as a student’s expressed change of gender, California public school parents end up left in the dark."

"When it comes to a student’s change in gender identity, California state policymakers apparently do not trust parents to do the right thing for their child. So, the state purposefully interferes with a parent’s access to meaningful information about their child’s gender identity choices. The state does this by prohibiting public school teachers from informing parents. The State Defendants explain that these policies are needed to prevent bullying and harassment. Preventing student bullying and harassment in school is a laudable goal. The problem is that the parent exclusion policies seem to presume that it is the parents that will be the harassers from whom students need to be protected."

He wrote that even if the California defendants, which include state Attorney General Rob Bonta, state Board of Education members, and others, "could demonstrate that excluding parents was good policy on some level, such a policy cannot be implemented at the expense of parents’ constitutional rights."

"The difficult and long lasting issues of gender nonconformity leave parents to suffer adverse consequences over a lifetime. The State Defendants, on the other hand, have no personal investment in a student’s health and the State Defendants will not be exposed to a lifetime of a student’s mental health issues. Instead, that will be the parents’ grief to bear alone."

He wrote that if parents were informed early on "as is their right" after a student "says or dresses in a way that suggests a non-conforming gender identity, four of the five probable outcomes will be positive:" parents may affirm their child’s gender identity, parents may get a child to a doctor to help them work through issues therapeutically, parents may not take a position and wait to see if the new gender identity persists, they may disagree completely while still loving their child, or, in "isolated instances," parents may physically abuse their child.

Benitez noted the example of the court case Regino, in which a female 11-year-old student "began to feel depressed and anxious likely due to her mother’s breast cancer and her grandfather’s passing." The school’s counselor "addressed issues of gender identity and sexuality" with the student, and "Within a few months the child began to express she felt like a boy and wanted a new name and pronouns." The counselor relayed the name and pronoun change to the student’s teacher and other personnel, and later in the school year, the student told her grandmother, who told the child’s mother.

"Regino let her child know that she supported her and would assist in her transition, if that is what she wanted. Importantly, the mother also arranged for counseling to discuss the depression and anxiety. Over the spring and summer, the child’s feelings about being a boy subsided. According to Regino, the child identified as a girl again and remained in counseling for depression and anxiety."

"Had the mother continued to be uninformed about her student’s gender nonconformity at school, the child would not have known of or benefitted from her mother’s support. Her mother was able to arrange for counseling, which of course, an eleven year old could not do on her own. Through counseling, her underlying issues of depression and anxiety are being treated and her child’s mistaken feelings about her gender are not complicating the treatment. In effect, Regino did what parents normally do: she supported her child in an emotionally difficult time and arranged expert help for their child. In this case, social transitioning may have mistakenly masked a more serious mental health challenge."