A federal appeals court has temporarily paused enforcement of a San Diego federal judge’s ruling that had cleared the way for school staff to tell parents about possible changes to their child’s gender presentation without the student’s consent.
The 9th Circuit Court of Appeals granted a short-term administrative stay of the ruling but has not yet decided whether to grant a longer-term stay pending an appeal. It’s expected to rule on that next week.
The case, Mirabelli v. Olson, began in 2023 when two Escondido Union School District teachers sued over the district’s policy, based on state guidance at the time, prohibiting employees from disclosing what it called a student’s transgender or gender-nonconforming status absent the student’s consent.
The state has said that doing this risks outing a student who may be transgender or gender-nonconforming to their parents, creating an unsafe school environment and violating state privacy and non-discrimination laws.
But Judge Roger Benitez ruled last week in favor of the plaintiffs in the class-action lawsuit. He said parents have a constitutional right, as part of their rights to raise and care for their children, to know about their child’s gender presentation, and that they deserve to know if their child is gender nonconforming.
Benitez also issued a permanent injunction barring California public school employees from misleading parents about their child’s gender presentation at school — for instance, by using different pronouns for a student with their parents than the student uses at school. He also barred the state from in any way interfering with a teacher or staff member telling parents about their child’s gender.
State lawyers who are defending the case immediately appealed and asked for a stay of the ruling in the meantime.
The state argued in its emergency request for a stay that Benitez’s ruling would “create chaos and confusion among students, parents, teachers and staff.”
Benitez’s ruling does not order school employees to proactively notify parents about their child’s gender presentation at school. But his ruling does say that school employees cannot mislead parents about it, raising questions as to whether his ruling could require teachers to tell parents if the parents asked them.
The ruling may be at odds with a state law that went into effect a year ago, AB 1955, prohibiting public schools from requiring staff to disclose anything about a student’s sexual orientation, gender identity or gender expression without the student’s consent, unless otherwise required by law. AB 1955 does not, however, prohibit teachers from telling parents about their student’s gender.
To the California Legislative LGBTQ Caucus, which supported that legislation, Benitez’s ruling posed a clear conflict.
“It would have created fear, confusion, and conflicting legal obligations,” the caucus said. “California law is clear that schools cannot compel educators to forcibly out students.”
Because of Benitez’s order, state attorneys said “there is a serious risk that teachers and schools will begin disclosing sensitive information about students’ gender identities and expression — information that students disclosed relying on existing statutory and regulatory protections.”
Benitez had denied the state’s initial request for a stay of his ruling. He said the state had been confusing and inconsistent on the question of whether teachers can notify parents if their child’s gender presentation changes.
Last year, the state education department withdrew its long-standing guidance that prohibited school staff from telling parents about a student’s transgender or gender-nonconforming status.
Despite backtracking on its official guidance to schools, the state has continued to argue in court that school staff must not tell parents without the student’s consent.
Paul Jonna, the lead attorney for the plaintiffs, filed an opposition Tuesday to the state’s request for a longer stay of Benitez’s ruling.
He said the state had been contradictory in alleging there would be emergency-level irreparable harm from the ruling, considering it had already withdrawn its guidance. Escondido had also backed away from its policy.
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