One subject that schools across the country are currently facing is how to address changing concepts related to gender identity. Escondido Union School District (District) recently adopted a gender identification policy where: (1) there is school-wide recognition of any student’s newly expressed gender identification and (2) when communicating with a student’s parents, there is an enforced requirement of faculty confidentiality and non-disclosure regarding a student’s newly expressed gender identification. The result of this policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender, or wants to be addressed by a new name or new pronouns during the school day. Under the policy, communication with parents is permitted only if the child first gives consent to the school. A teacher who knowingly fails to comply is considered to have engaged in discriminatory harassment and is subject to adverse employment actions.
Other District policies are in tension with this new policy. For example, one District policy states that parents have a right and obligation to be engaged in their child’s education and to be involved in the intellectual, physical, emotional, and social development and well-being of their child. Another policy states that being dishonest with students, parents, staff, or members of the public, including falsifying information in school records, is inappropriate employee conduct.
At the start of the 2022 school year, two teachers sought religious accommodations in response to the policy. The District did not contest the sincerity of their religious beliefs, but did not grant the accommodations.
The two teachers filed suit, seeking a preliminary injunction to stop the District from taking adverse employment actions against them in the event they violated the policy.
The teachers argued that they maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parents. The teachers also argued that parents enjoy a federal constitutional right to make decisions about the care and upbringing of their child. The teachers stated they had a well-founded fear of adverse employment action should they violate the policy.
The Court gave great weight to medical opinions on this topic, and concluded that the confidentiality and non-disclosure of a student’s gender identity to parents is not conducive to the health of students. Specifically, the court reviewed the opinions of medical experts, which indicated that when a child presents a desire to use a new name or pronoun, the first step should be careful assessment by a mental health professional with expertise on the topic. The Court also stated that mental health practices should not drive a wedge between parents and children, because this creates distrust and tension.
The Court also considered that parental consent is required to provide medical and psychological treatment to minors. In part, this is because the science of mental health recognizes that the best evidence regarding a minor’s mental and emotional well-being comes from first-hand accounts by parents, rather than potentially biased accounts from minor children.
The Court also considered that children tend to make “impetuous and ill-considered life decisions.” The Court considered that children are more transitory, less fixed, and as they mature, their recklessness and impetuousness may subside.
The Court considered the federal Constitutional rights of parents. The Court referenced the United States Supreme Court’s continued position that parents have a right, grounded in the U.S. Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children. The Court also noted that the United States Court of Appeals for the Ninth Circuit, which California is a part of, recently acknowledged the continuing vitality of a parent’s constitutionally protected interest in raising a child. The Court considered that the Family Educational Rights and Privacy Act (FERPA), which requires schools to provide parents the opportunity and right to inspect and review their child’s educational record, likewise speaks to the importance of parental involvement in their child’s education. FERPA indicates that the privacy right of a child takes second place to the parent’s right to “know.”
The Court considered California’s right to privacy, which extends to minors. The Court noted that the general rule is that medical care can be provided to minors only with the consent of the minor’s parent or guardian. There are certain types of medical services that minors can obtain without parental consent, however, gender transitioning is not among the exceptions. The Court was not persuaded that a child has a right to privacy surrounding their name and pronouns, especially because one element of a right to privacy is a reasonable expectation of privacy. A student who announces the desire to be publicly known in school by a new name, gender, or pronoun, does not have a reasonable expectation of privacy. The Court considered a child’s right to privacy as a quasi-right, in that, certain parental rights, including the parental right to know and the parental right to control and direct the activities of their child, are superior to a child’s rights to privacy.
The Court next considered whether the policy impacted the teachers’ free speech rights. The teachers argued that their right to speak freely on matters of public concern do not end at the school doors, and that the policy forces them to adhere to an ideology, with which they directly disagree, as a condition of their employment. The Court agreed that the teachers have a direct disagreement with the policy, but disagreed that this policy impacted them outside of the school doors. The Court noted that the teachers could probably make a freedom of speech claim if the policy compelled them to violate the law or deliberately convey an illegal message, which could come up if, in response to the teachers’ requests for religious accommodations, the teachers were required to communicate misrepresentations to parents about student names and pronouns.
The Court also considered whether the policy impacted the teachers’ free exercise of religion. The teachers argued that the policy violated their freedom of religion because they believe the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, and that God forbids lying and deceit. The District argued that the policy does not require lying, which the Court did not find persuasive. The Court concluded that the teachers faced an unlawful choice to lose their faith and keep their job, or keep their faith and lose their job.
In light of these findings, the Court granted the preliminary injunction.
Mirabelli v. Olson (S.D.Cal. Sep. 14, 2023) 2023 U.S.Dist.LEXIS 163880.
Note: Several California school districts are passing local policies that require school officials to notify parents and guardians if their child asks to use a name or pronoun different than what was assigned at birth, or if they engage in activities and use spaces designed for the opposite sex. Although this case involved a public school and these local measures apply to public schools, the arguments presented may help inform private schools as they navigate gender identity matters and create gender identity policies.