Teachers’ lawsuit against anti-parent California gender policy to move forward

A lawsuit filed by two teachers against California’s support for school policies to conceal a child’s gender identity from parents can move forward, a federal judge has ruled.

Escondido teachers Elizabeth Mirabelli and Lori Ann West sued their school district in 2023 after they received an email with a list of students, their preferred names and pronouns and directions to use different names in some instances when contacting parents.

The teachers later added Gov. Gavin Newsom and Attorney General Rob Bonta as defendants in the suit, alleging the state was forcing schools to adopt the policy that infringed on their rights to free speech and free exercise of religion, especially through guidance promoted on the website of the California Department of Education (CDE). 

In a motion to dismiss the suit, the state superintendent of public instruction and members of the California State Board of Education argued the lawsuit was moot since the CDE has removed a directive for districts to adopt “Parental Exclusion Policies” from its website. 

However, U.S. District Court Judge Roger Benitez ruled on April 10 this didn’t prove the policy had actually changed, allowing the case to proceed. 

“The CDE claimed that it cured the problem by quietly taking down its parental deception guidance page, but the Court saw through this tactic,” said Paul Jonna, Thomas More Society special counsel, who is representing the teachers.   

“Our depositions of the CDE, and their own public filings, conclusively demonstrate that the CDE has actually never wavered from its core position – the dangerous notion that children have a constitutional right to hide their gender identity from their own parents.” 

This was the second ruling this year to toss a motion to dismiss in the First Amendment case. 

In March, the federal Department of Education launched an investigation of the state over its parental exclusion policies. The probe is linked to President Donald Trump’s executive orders defending biological sex and threatening to withhold funding from states and schools with pro-transgender policies that discriminate against females. 

In September 2023, Benitez granted a previous injunction finding the policies likely violate the teachers’ free speech rights and parents’ Fourteenth Amendment, or due process, rights. 

In scathing language, the judge called the policy a “trifecta of harm”: 

“It [the policy] harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students – violating plaintiffs’ religious beliefs.” 

Jonna said he hoped the case would lead to the end of the state’s policies. 

“Time and time again, the California Department of Education has tried to weasel its way out of our case and sidestep legal accountability,” he said. “We’re encouraged by the Court’s ruling, and we will keep prosecuting this case until we obtain permanent, class-wide relief for parents, children, and teachers, by putting the final nail in the coffin of California’s Parental Exclusion Policies.”