by Greg Piper
President George W. Bush nominee questions Democratic attorney general's competence as a lawyer, given his arguments. SCOTUS considering petitions from Florida to Maine to review school districts' parental exclusion policies.
California often portrays itself as leading the nation on
important liberal policy issues, from authorizing same-sex marriage over
the will of voters to utilizing its massive population to set de facto
national environmental standards that are stricter than federal
policies.
Now it's getting dragged into teeing up a national standard
for public schools' obligations to employees and parents when it comes
to students expressing "gender incongruence" on campus, thanks to a two-and-a-half-year-old class action lawsuit and petitions to the Supreme Court to review similar policies in Massachusetts, Florida and just this week Maine.
U.S. District Judge Roger Benitez, repeatedly slurred by name by Democratic Gov. Gavin Newsom for other rulings, granted summary judgment to parents and teachers
against the state's so-called gender secrecy policies, which allegedly
conceal from parents their children's gender identity at odds with sex,
including by muzzling employees.
The President George W. Bush nominee approved their motion for a class-wide permanent injunction, two months after certifying a class and four subclasses and a month after threatening to sanction officials for "misleading" Benitez by falsely claiming the state was no longer enforcing gender-secrecy policies so that he would moot the case.
He has consistently ruled against the Golden State, citing
the "significant, adverse, life-long social-emotional health
consequences" that can flow from social transitioning in denying motions to dismiss nearly a year ago.
The injunction applies to Attorney General Rob Bonta, State
Superintendent Tony Thurmond and State Board of Education members,
prohibiting them from using the state constitution, statutes,
"regulations or guidance" or the "newly produced PRISM cultural
competency training" to mislead parents about their children's "gender
presentation at school."
It also bans them from using children's preferred names and
gender pronouns that "do not match the child’s legal name and natal
pronouns" when the parent "has communicated their objection to such
use."
Finally, the injunction stops state officials from
overriding an "employee’s conscientious or religious objection" to using
students' preferred names and pronouns "while concealing that social
gender transition" from parents, and from interfering when employees
seek to tell parents that their children have "manifested a form of
gender incongruity."
Benitez also ordered officials to put a parental-rights
statement in a "prominent place" on any "state-created or approved
instruction on the gender-related rights of student and faculty,"
including PRISM materials.
It says they have a "federal constitutional right to be
informed if their public school student child expresses gender
incongruence" and that teachers and staff have the same right to
"accurately inform" parents of this. These federal rights overrule state
and local laws, regulations and policies "to the contrary," the
statement concludes.
Bonta botched his "legal constructs" by arguing that the
plaintiffs are asking California to "magnanimously permit a sort of
federal constitutional exemption," Benitez wrote, paraphrasing Bonta's
argument. Rather, they seek to force the state to "respect their
enduring federal constitutional rights as citizens of the United
States," the judge said.
"California’s education policymakers may be experts on
primary and secondary education but they would not receive top grades as
students of Constitutional Law," Benitez said, implying that by
defending "an unwarranted aggrandizing of a student’s state-created
right to privacy," Bonta had raised doubts about his own competence as a
lawyer.
Bonta's office has already filed an appeal
with the 9th U.S. Circuit Court of Appeals and "will also be requesting
that the Ninth Circuit stay the district court’s injunction pending
that appeal," a spokesperson for the office wrote in an email.
"We are committed to securing school environments that
allow transgender students to safely participate as their authentic
selves while recognizing the important role that parents play in
students’ lives," the spokesperson said.
The California Department of Education, which Thurmond
leads, declined to comment on "pending litigation" when asked for its
response to the ruling, the injunction's conditions and the reasoning of
Benitez.
"This victory is not just ours," teachers Elizabeth
Mirabelli and Lori Ann West, the original plaintiffs, said in a
statement distributed by their lawyers at the Thomas More Society. "It
is a win for honesty, transparency, and the fundamental rights of
teachers and parents."
Subsequent plaintiffs, teachers and parents, used pseudonyms due to the "severe harassment and retaliation"
faced by Mirabelli and West, TMS said. "They never sought to be the
face of this fight, yet their courage has transformed the lives of
families and educators not only in California but perhaps the entire
country," Executive Vice President Peter Breen said.
Special counsel Paul Jonna warned that state and local
officials who continue to enforce the policies, as California allegedly
did by moving the requirements to the secret PRISM training from a
public FAQ page after it got sued, will "face severe legal
consequences."
The Liberty Justice Center praised the ruling for "its
clarity and its rejection of the state’s framing" and cited its own work
to "stop this model in California before it spreads nationally" and
"reestablish durable constitutional limits on the role of the state in
family life."
Bonta missed the legal deadline to appeal
a ruling for LJC's client, Chino Valley Unified School District, that
upheld the constitutionality of its parental notification policy when
students request to change their official or unofficial school records. Chino Valley is now suing to block California's AB 1955, which claims "existing law" prohibits parental notification.
Schools have 'no personal investment in a student’s health'
The thorough record produced in the California challenge
could help SCOTUS in deciding whether to accept any of a number of
petitions to review school district policies that allegedly give
students veto power over their parents knowing how they present at
school.
The most recent was filed Monday by the Goldwater Institute on behalf of Amber Lavigne, who alleged her gender-confused 13-year-old's Maine school district socially transitioned the girl behind Lavigne's back,
even giving the girl a chest binder to flatten her breasts, despite a
written policy explicitly requiring parental involvement.
While Lavigne alleged "either there was an unwritten de facto policy that school employees followed" or that the district "has now made the withholding of information the de facto
policy" by defending employees who transitioned the girl, the 1st U.S.
Circuit Court of Appeals dismissed the suit on the grounds that there
were "obvious alternative explanations."
That deepens a 5-3 split in the federal appeals courts over
whether courts can rely on a "probable alternative explanation" to
dismiss a case for failure to plausibly allege a violation, or can only
dismiss "if the plaintiff’s explanation is itself implausible," the
petition says.
Lavigne also asks SCOTUS to answer a deeper question:
"Whether a parent’s fundamental constitutional rights include the right
to be notified when public schools affirmatively recognize and
facilitate a child’s gender transition." (The 1st Circuit had no
GOP-appointed active judges until last month, making it a magnet for litigation against President Trump's policies.)
The answer for Benitez was an unequivocal "yes" in the California case.
Parents have a right to "gender information" based on the
14th Amendment's substantive due process clause and First Amendment's
free exercise clause, he said. Religious teachers have a right to
"provide gender information" to parents under free exercise, and all
teachers to "communicate accurate gender information" under the free
speech clause, he said.
"Long before Horace Mann advocated in the 1840’s for a
system of common schools and compulsory education, parents have carried
out their rights and responsibility to direct the general and medical
care and religious upbringing of their child," deemed a "principle of
general applicability" in this year's parental rights precedent Mahmoud, the opinion stated.
While teachers historically "informed parents of physical
injuries or questions about a student’s health and well-being" and are
legally obligated to do so, as when a sexual assault occurs at school,
"California state policymakers apparently do not trust parents to do the
right thing for their child" when the issue is gender identity, Benitez
wrote.
State officials wrongly portray parents as "the harassers
from whom students need to be protected" when they express gender
incongruence, and unlike parents, "have no personal investment in a
student’s health" and "will not be exposed to a lifetime of a student’s
mental health issues" stemming from their "gender nonconfirmity," he
said.
Benitez said even the state's expert witnesses agree that
"four of the five probable outcomes will be positive" if parents are
"informed early on (as is their right) after a student says or dresses
in a way that suggests a non-conforming gender identity," and that even
the fifth outcome — parental disagreement — "is a valid reaction."
He gave particular weight to the testimony of transgender child psychologist Erica Anderson, who frequently collaborates with LJC
on briefs and said hiding social transitions from parents is "a grave
mistake" because, in Anderson's clinical experience, it leads to "a
rupture and serious problems with the child."
Greg Piper
Source: https://justthenews.com/politics-policy/education/judge-orders-california-stop-hiding-gender-transitions-parents-disclose
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