Policies protecting outing of trans students are non-binding 'guidelines,' California says

SAN DIEGO (CN) — A San Diego federal judge will need to decide if California strictly enforces anti-discrimination policies at schools that prevent teachers from revealing students’ gender identities without their permission, or if the state provides suggested guidelines that schools can pick and choose from to support students and parents in their school districts.

California State Superintendent of Public Instruction Tony Thurmond, the California State Board of Education and the state attorney general argued Monday to dismiss a challenge by two Escondido teachers that say the state threatens school districts to comply with policies that violate their religious liberties, free speech and parents’ 14th Amendment rights to parent their children as they see appropriate.

Kevin Quade, an attorney for California Attorney General Rob Bonta, said the state has no strict policy, but rather just “guidelines” on what should be told to parents about their children’s gender identities.

Quade argued the teachers lack standing and jurisdiction because they haven’t sufficiently claimed that state is actually pursuing any action against any school district in the state to enforce the policy — which is why their suit against the Escondido Union School District, the California Board of Education and Bonta should be dismissed, he said.

The only enforcement action the state would pursue would be if a school district adopts any kind of mandatory outing policy, he added.

Leonard Garfinkel, an attorney representing Thurmond and the California State Board of Education, said that the crux of this case relies on protocol based on “guidance” issued by the state that school districts are meant to be able to tailor and are not binding policies.

In California, gender non-conforming students have a right to privacy and to not be discriminated against, Garfinkel said, adding that the guidelines help protect students who might be afraid of coming out to their parents and allow teachers to provide a healthy, affirming, environment where students can express their gender identity.

Under the policy, Garfinkel said students can talk to teachers and their parents about any mental health issues they might be having, but gender incongruity doesn’t always or necessarily lead to mental health issues.

U.S. District Judge Roger Benitez compared the guidelines to a coach not sending a student athlete who was injured during a soccer game to a nurse.

“That’s shocking,” the George W. Bush appointee said. “This case says you’re the parent, you’re the enemy."

But “social transitioning” — where students ask to be identified with different names and different genders than on their birth certificates — is actually the crux of the case, plaintiff attorney Paul Jonna of LiMandri & Jonna said.

“Just going by their preferred pronouns is social transitioning,” Jonna said. He added that this kind of transitioning isn’t a “neutral act” but a form of psychological treatment.

Benitez stopped Jonna, saying he was just interested in hearing about the claims that the “guidelines” might violate parental rights to seek care and have control over their kids’ lives, especially if their “gender incongruity” might lead to mental health issues, gender dysphoria or even suicide.

Daniel Shinoff of Artiano Shinoff, an attorney for Escondido school district staff members named as defendants in the case, added that the district adopted the policies to allow school administrators and school psychologists to “delve deeper” if any students are experiencing mental health issues or anxiety.

Students with gender incongruity are referred to a school psychologist, he said, adding that it’s important for a student experiencing anxiety to receive support from their parents.

Benitez — who at one point referred to the defense as a “circular firing squad" for placing blame about who was supposed to be enforcing the guidelines, or whether they were even supposed to be enforced, on every other defendant — said he would take the matter under submission and issue a ruling later.

The policy, which the teachers say was adopted in private and without a public meeting, also required teachers to use the pronouns the students identify with in class while using the pronouns matching their legal names when talking to their parents or guardians if the student does not give permission to school employees to identify themselves as trans or gender-nonconforming to their parents.

In their original lawsuit, the plaintiffs — middle school English teacher Elizabeth Mirabelli and middle school P.E. teacher Lori Ann West — say Escondido Unified School District’s requirements that school employees treat student’s transgender or gender-nonconforming identities as private information that cannot be shared with others, including other teachers, parents and guardians, without express permission from the student are unworkable.

Mirabelli and West claim these privacy requirements caused them anxiety and other medical issues over the stress of squaring the rules with their own religious beliefs about parental rights, and their “religious and moral duty to provide parents with all information that is needed to properly care for and raise their children.

“Morally and religiously, they know that the complex issues of gender dysphoria and gender identity are not issues best left for children to figure out on their own, with no parental involvement whatsoever,” the teachers say in their lawsuit.