A victory for parental rights over transgender ‘rights’ … in California?!

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We were surprised when we heard that parental rights won, in California, too. But Corey A. DeAngelis broke the news earlier:

We have read the order and opinion and it is frankly the reasoning is a little strange. The court is right, but it arrives at the right conclusion by ‘going the scenic route.’

The case involved the Escondido Union School District (EUSD) which appears to be north of San Diego, and two of its teachers: Elizabeth Mirabelli and Lori Ann West. Both had been named ‘teacher of the year’ at different times during their careers.

But now, apparently in line with a California state law, they were being told that they couldn’t tell parents about their students’ decision to identify as a gender other than, you know, their actual gender. For instance, the court tells us that

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Mirabelli received an email with a list of students and entries such as: ‘[student name]: Preferred name is [redacted] (pronouns are he/him). Dad and stepmom are NOT aware, please use [redacted] and she/her when calling home.

And what are they supposed to do if they are speaking to the parents and they ask if the child is transitioning or something like that?

the plaintiffs have been told by EUSD through its attorneys that they can say only: ‘the inquiry is outside the scope of the intent of [my] interaction and state that the intent of the communication, may involve behavior as it relates to school and class rules, assignments, etc.’

These teachers were not looking to just call the parents and tattle. But they didn’t want to lie or mislead them if they happened to interact with them.

And the simplest way for the court to rule in their favor is to do this is to go under parental rights. The parents have a right to know this sort of thing, therefore the school cannot prevent the teachers from telling them. But the judge picked a much more indirect route.

The opinion starts out very strong. It poses a series of hypothetical questions that tend to show how radically differently this issue is treated from any other:

If a school student suffers a life-threatening concussion while playing soccer during a class on physical fitness, and the child expresses his feelings that he does not want his parents to find out, would it be lawful for the school to require its instructor to hide the event from the parents? Of course not. What if the child at school suffers a sexual assault, or expresses suicidal thoughts, or expresses aggressive and threatening thoughts or behavior? Would it be acceptable not to inform the parents? No. These would be serious medical conditions to which parents have a legal and federal constitutional right to be informed of and to direct decisions on medical treatment. A parent’s right to make decisions concerning the care, custody, control, and medical care of their children is one of the oldest of the fundamental liberty interests that Americans enjoy. However, if a school student expresses words or actions during class that may be the first visible sign that the child is dealing with gender incongruity or possibly gender dysphoria, conditions that may (or may not) progress into significant, adverse, life-long social-emotional health consequences, would it be lawful for the school to require teachers to hide the event from the parents?

Well, the answer is obviously no. The court also correctly notes that parents have a right to raise their children:

The United States Supreme Court has historically and repeatedly declared that parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children. In Troxel v. Granville, 530 U.S. 57, 67-68 (2000), the Court remarked, ‘the custodial parent has a constitutional right to determine, without undue interference by the state, how best to raise, nurture, and educate the child. The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment.’ The Court commented that the principle, first formulated in Myer and Pierce, ‘long ha[s] been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the ‘custody, care and nurture of the child,’ free from state intervention.’

The court even talks about how a great deal of literature supporting Transgender theory indicates that it is important to involve the parents in the transition process. So even if you buy into this nonsense, parents should know.

And then it gets to the legal claims the teachers make. The first is that these restrictions on what they can tell parents violate the First Amendment. We have been very critical of the concept of ‘academic freedom,’ but Supreme Court precedent clearly establishes that teachers are supposedly allowed to speak freely about classroom matters, within some limitations:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ … The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’

Keyishian v. Board of Regents of Univ. of State of NY, 385 U.S. 589 (1967) (citations removed). Of course, these days that is a big joke, with most schools allowing a robust exchange of ideas ranging from ‘Socialism is awesome but maybe Stalin took it a bit far,’ to ‘what are you talking about? Stalin was awesome!’ And that is in part because they have made it so that on many campuses, a conservative couldn’t even be hired. But as out-of-touch as that is from reality, it is still binding precedent.

And, strangely, the court gave it absolutely no consideration and decided to punt on the whole issue of freedom of expression. To back up a little, the court was trying to decide whether to grant a preliminary injunction, which typically only lasts until the end of the case. Whether a preliminary injunction was granted or denied, when the case is over the court would also decide whether to grant a permanent injunction. So, the judge was saying, in essence, ‘I might grant a permanent injunction on this point, but I am going to rely on another ground for a preliminary injunction.’

And that other ground was religious freedom. The teachers believed that to deceive parents this way violated  their religious beliefs. The defendants tried to claim ‘hey, but we aren’t telling them to lie, just to refer to them as pronouns they don’t prefer when talking to their parents and then refusing to talk about the issue if asked.’ The court said, more or less, they believed in being more honest.

We think that is somewhat weak sauce. Let’s say for instance, that you saw a man shoot a gun at his son, intentionally trying to kill him. You call the police, while the son escapes, and eventually you see him hiding in your backyard. Then the father knocks on your door, and when you answer it, he says ‘have you seen my son?’

Do you think most people would be honest in a moment like that, regardless of their faith?

The opinion doesn’t tell us what religious tradition these women have and they are entitled to their interpretation of whatever faith it is, even if it clashes with our own. But we are extremely skeptical of any person who says they will never be dishonest, no matter what. We think that makes the entire opinion somewhat weak.

A reasonable person might say ‘so what? The judge may have arrived at the right conclusion the wrong way, but all’s well that ends well.’ Except it’s probably not the end. We assume that the school district will be appealing to the Ninth Circuit soon and on a good day, that is an uphill battle. But saddled with an unpersuasive opinion, we think these teachers might find their decision overturned.

In any case, the school district is prohibited from punishing these specific two teachers for disclosing that children are trans and the like. So, in theory, it doesn’t apply to anyone else, but if another teacher is in the same school district is honest with parents, the school district would be hard pressed to punish them. And other schools in that judicial district might be reluctant to enforce the state policy, too.

And truly, the Supreme Court needs to intervene on these issues. The Supreme Court needs to set down extremely clear precedents that say that 1) you can’t even socially transition a child behind a parents’ back,  and 2) preventing minors from being transitioned. There are many issues presented by this transgender movement that the Supreme Court needs to straighten out.

She appears to be discussing Washington (state) policies. The decision was rendered in the U.S. District Court for the Southern District of California. So it is not directly binding in Washington.

These specific teachers, but the precedent would presumably cover the entire judicial district.

Amen to that. 

That is correct. The ruling only said that they couldn’t silence teachers. But as we read this case, we had a suspicion that a public interest law firm was involved. This whole thing smelled of what we call ‘legal activism.’ That is, when lawyers consciously use the courts to advance a political agenda. So, it didn’t surprise us when the Thomas More Society took credit for the case, writing:

Thus, we suspect that this is part of a strategy. The first case says that teachers can’t be forced to keep this secret. And then later another case will be brought requiring the school to disclose these issues.

That would be a lawyer for the teachers. In any case, this is a win. We also think it is inevitable that the courts will not allow schools to keep this kind of information from parents outside of a unique showing of danger to the children, just as we think eventually we will see medically transitioning minors either banned, or subjected to so many lawsuit that no one will dare do it. The only question how much damage will be done before this mess is straightened out.

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Las Vegas News Magazine

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