In Mirabelli v. Bonta, the Supreme Court just delivered a major win for California families and signaled that it may soon reinvigorate the Constitution’s protection for the right of all parents to direct the care and upbringing of their children.
Under California law, public schools across the state facilitate children’s social gender transition without parental knowledge or consent. The Supreme Court did not provide a final word on the legality of such policies, but it did reinstate a lower court’s decision blocking California public schools’ secret gender transition policies while the case challenging them continues. California may be an outlier in many ways, but here it is hardly alone. Schools in nearly every state, together educating millions of students, have such policies.
The San Ysidro School District policy is typical. School personnel, it says, “shall accept the student’s assertion of . . . gender identity and treat the student consistent with that gender identity.” This includes a student’s choice of name and pronoun, access to “sex-segregated facilities” such as restrooms and locker rooms, participation in physical education classes and sports, and field trips.
The San Ysidro policy defines “gender identity” as a student’s “gender-related identity, appearance, or behavior as determined from the student’s internal sense.” But that internal sense can not only be influenced by innumerable factors, but it can change at any time. Yet it is, by itself, enough to dictate school policies and determine how the school will treat a child.
But it gets worse. The San Diego Unified School District policy directs school personnel, when “contacting parents/guardians,” not to “reveal, imply, or refer to a student’s actual or perceived gender identity” without that student’s consent. A parent’s written permission may be required for a child to play on a sports team, yet parents are to be kept in the dark about such things as whether their daughter is changing in the boys’ locker room.
The human cost of these policies is staggering. One set of parents suing in Mirabelli learned that their daughter’s school had been socially transitioning her only after she attempted to commit suicide at the start of her eighth-grade year. At a new school, officials ignored the parents’ instructions and still refused to keep them informed. These and other parents sued, claiming that this parental-exclusion policy violated their specific First Amendment right to exercise religion and their general 14th Amendment right to direct their child’s upbringing.
The trial court agreed with the parents and permanently blocked these California policies, requiring public schools to inform parents about their children’s gender presentation and expression and to follow those parents’ instructions regarding the use of names and pronouns. The U.S. Court of Appeals for the Ninth Circuit lifted that injunction, allowing the gender policies to operate, and now the Supreme Court, in a 6–3 decision, revived the injunction until there is a final decision on the parents’ claims.
Predicting the Supreme Court’s final decisions can be hazardous, but the signs here are encouraging. The most important factor when a court considers an injunction is whether the plaintiffs are likely to finally succeed on the merits of their lawsuit. Here, the Supreme Court said they were because its earlier rulings regarding the parents’ two claims — religious exercise and parental rights — are clear.
Here’s another good sign. Last year, the Supreme Court held in Mahmoud v. Taylor that a Maryland school district policy forcing kids to participate in instruction using pro-LGBTQ materials without their parents’ consent or knowledge violated the parents’ First Amendment right to “guide the religious development of their children.” In that case, gender activists tried to sideline an earlier parental-rights decision, Wisconsin v. Yoder, by saying it applied only to cases with similar facts. The Supreme Court rejected that tactic, stating clearly that Yoder “embodies a robust principle of general applicability.”
The Court had to do the same thing in Mirabelli. The Ninth Circuit tried to do to Mahmoud what the schools in Mahmoud tried to do to Yoder, but the Supreme Court would have none of it. The 14th Amendment’s protection for parents’ right to direct their children’s upbringing is separate from the First Amendment protection for the free exercise of religion.
A procedural decision about an injuunction is a step along the way to a final decision, but sometimes the way courts take that interim step signals how they will answer the legal questions in the end. Here, it looks likely that the Supreme Court will say that this gender ideology campaign violates the Constitution by bypassing parents.
Thomas Jipping is a senior legal fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom. Marc Wheat is general counsel at Advancing American Freedom.