Escondido Union School 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. This policy only permits communication with parents about the student’s gender identify if the student first gives consent to the school. A teacher who knowingly fails to comply may be considered to have engaged in discriminatory harassment and subject to discipline.
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 in Federal District Court, asking the Court to issue 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 concluded that the confidentiality and non-disclosure of a student’s gender identity to parents is not conducive to student health. The Court relied on certain medical experts who 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 quoted a medical expert’s testimony 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.
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 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.
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. The Court held that 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 finally considered whether the policy impacted the teachers’ free speech rights. The teachers argued that their right to speak freely on matters of public concern does 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 declined to rule on the free speech claim because it could grant the preliminary injunction based on the teachers’ free exercise of religion claim.
The Court 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 Federal District Court denied Escondido Unified School District’s motion to dismiss and granted the teachers’ request for a preliminary injunction. This means the case will continue and, in the meantime, the District cannot enforce the policy against the teachers who brought the lawsuit.
Mirabelli v. Olson (S.D.Cal. Sep. 14, 2023) 2023 U.S.Dist.LEXIS 163880.
Note: The August edition of Education Matters reported on the Regino v. Staley case. In that case, a parent sued the Chico Unified School District because the District’s policy prevented teachers from notifying her when they began referring to her child by a different name and gender pronouns, because they did not have her child’s consent to share that information with her. In that case, a different federal district court ruled in favor of the District and said that the District’s policy did not violate the mother’s constitutional parental rights. The mother has appealed the decision which is pending before the Ninth Circuit Court of Appeals.