California judge unlikely to change mind on school district 'forced outing' policy

(CN) — A Southern California school district’s old and now-defunct policy of notifying parents when children request to use different names or pronouns is unconstitutional, a state judge reiterated on Friday.

At a hearing on competing motions for summary judgment, Superior Court Judge Michael Sachs indicated that he would likely make permanent his previous ruling blocking most of the policy. That decision came after California Attorney General Rob Bonta, a Democrat, sued Chino Valley Unified School District in San Bernardino County over what he described as the district’s “forced outing” policy.

During oral arguments, Sachs had some especially harsh words for Chino Valley Unified School Board members.

“Haven’t the board members already violated their oath?” Sachs asked. “At least four members of the board continued with their discriminatory comments advocating for a policy that would be in violation of the 14th Amendment. How can you tell me, ‘Judge, never mind that stuff?’”

Passed in July 2023, the controversial school policy required that parents and guardians be notified “if their child is involved in violence, expresses suicidal ideation, or requests to be identified by a gender other than the gender assigned at birth.”

The board meeting to approve the rule was tumultuous, with State Superintendent Tony Thurmond appearing in person to speak out against the proposal.

According to Thurmond, he was verbally attacked by the board president and forcibly removed after he finished speaking. But according to the school board, Thurmond voluntarily left after he was admonished for trying to go over his allotted speaking time.

Bonta in Aug. 2023 sued to block the new policy, arguing it violated the Equal Protection Clause of the 14th Amendment. But School Board President Sonja Shaw remained defiant, saying in an email: “Parents have a constitutional right in the upbringing of their children. Period. Bring it.”

Since then, the board has suffered a string of legal defeats. Last September, Superior Court Judge Thomas Garza issued a temporary restraining order in which he noted: “I don’t know what the purpose of this policy is.”

A month later, Sachs agreed to a preliminary injunction blocking parental notification on student gender changes. But the judge let stand a vaguely worded provision that notifies parents when students request a change to their “official or un-official records,” reasoning that it applied to all students equally.

Earlier this year, Chino Valley Unified revised its policy to conform with Judge Sachs’ injunction.

Gone was any mention of “gender identification” — though the provision regarding “official or un-official records” was left standing. Meanwhile, Chino Valley Unified last month also sued California over a newly signed law banning school districts from requiring “forced outings.”

The school district has argued the lawsuit against it should be thrown out on mootness grounds, as it says the policy it’s being sued over no longer exists.

Sachs declined to do so. “This issue has not gone away, and will not go away until a higher court makes a ruling,” he said. He also reiterated his previous opinion that while the first two parts of the policy were “overbroad,” the third was “not enacted with the same animus.”

State Deputy AG Delbert Tran urged the judge to change his mind with respect to the third provision, which remains in effect. Tran argued it was “enacted with invidious intent,” citing statements by school board members that referred to transgender identity as a “mental illness.”

“This discrimination has occurred, and it is occurring now,” Tran said.

Representing the school district, attorney Emily Rae insisted the old policy was dead and that board members “have provided sworn evidence to the court that they don’t have any plans to adopt the old policy.”

“How can you now ask me to give credence to their oath?” Sachs interrupted. “We have this prior history of discriminatory comments, of stomping on the rights of the public” — a reference to the board meeting in which Thurmond was ejected.

“The characterization of events at that board meeting, that’s not what happened,” Rae said.

“I watched it,” Sachs replied.

Both Rae and Jesse Franklin-Murdoch, an attorney for a group of parents who are intervenors in the case, tried to convince the judge to reverse himself.

“Identifying as the opposite sex is not a small manner,” Franklin-Murdoch said. “It’s not joining a club or being given an eye exam. Social transition is a major decision that may affect the life of a child for years to come.” He argued that changing one’s name, pronouns or choice of bathroom was an “intervention designed to treat gender dysphoria and must involve mental health professionals.”

“The case is not about medical interventions,” Tran argued in response. “This case is about forced outing when a student simply requests people to respect their names and pronouns.” It was, he said, a matter of basic decency.

Rae said the debate showed there were factual issues that could only be decided after a trial and shouldn’t be decided at this early phase.

Sachs took the matter under submission, saying he would issue a ruling sometime next week.

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