California teachers sue over policy that forces them to hide students’ gender preference

Washington D.C., May 2, 2023 / 11:10 am

Two middle school teachers in California sued their school district April 27 over a policy they argue could force them to deceive parents if the parents’ child identifies as a gender that does not match his or her biological sex.

The policy in question, adopted by the Escondido Union School District (EUSD), refers to a student’s “transgender or gender-nonconforming status” as “private information” that can only be disclosed “with the student’s prior written consent, except when the disclosure is otherwise required by law” or when the district has “compelling evidence” that it would be “necessary to preserve the student’s physical or mental well-being.”

According to a recording of a Feb. 3, 2022, staff meeting cited in the lawsuit, EUSD Director of Integrated Student Supports Tracy Schmidt said that school employees need prior written consent to reveal “a student’s transgender status or gender diverse status to individuals who do not have a legitimate need for the information.” She said that this includes “parents or caretakers.” 

The teachers, who are represented by the Thomas More Society, name both the EUSD and the California Board of Education in the lawsuit. The suit is directed against the district for creating the policy and the board is being sued for issuing guidance that the lawsuit argues led to the policy.

CNA reached out to the school district for comment but did not receive a response by time of publication. 

A spokesperson for the California Department of Education told CNA it “cannot comment on pending litigation” but provided a legal advisory regarding the antidiscrimination statutes for transgender youth in schools, which included a frequently asked questions page. 

The department’s FAQ states that “disclosing that a student is transgender [to parents, other students, or members of the public] without the student’s permission may violate California’s antidiscrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy.” 

According to the lawsuit, filed in the United States District Court for the Southern District of California, the two teachers, Elizabeth Mirabelli and Lori Ann West, were “distressed by the requirements to deceive parents.” They sought a religious exemption “that would allow them to act in the best interests of the children in their care — as required by their moral and religious convictions.” They sought permission “to use students’ legal names and biological pronouns, while also explaining that the student is referred to differently at the school,” but were denied that exemption.

Paul Jonna, who serves as special counsel for the Thomas More Society, said in a statement that the policy pits teachers against parents. 

“The real outrage here is that schools are requiring educators to hide critical information from parents about their child’s well-being,” Jonna said. “Rather than partnering with parents to help raise up young people with a well-rounded education and breadth of knowledge, these radical agendas are pitting parents and teachers against one another, to the detriment of their students.”

Jonna told CNA that the policy was adopted “during the [COVID-19] pandemic with no public input whatsoever” and that many parents are likely unaware of it because the district “hasn’t expressly informed parents about this policy.” He said that some parents “reached out to our client with surprise” after finding out about the policy through the lawsuit. 

Additionally, Jonna emphasized that the school district only provides education to students in kindergarten through eighth grade, so this policy is affecting “5-year-olds to 13-year-olds.” He said this is “part of this larger agenda to steer children” toward transgenderism. He added that it “starts with social transitioning” but leads to surgical transitioning, which is “irreversible in many cases.”

“This is all done in secret,” Jonna continued. “Parents are meant to be left in the dark.”

The lawsuit argues that the policy violates the First Amendment of the U.S. Constitution. 

According to the lawsuit, the district’s policy amounts to “compelled speech [and] viewpoint discrimination,” which the Supreme Court has ruled unconstitutional. It adds that the district has no compelling interest in achieving its goals through “deceiving parents” and cites court precedent, which states that “there is a presumption that fit parents act in the best interests of their children.” The lawsuit further argues that the policy violates the Free Exercise Clause because it prevents the teachers from freely exercising their religious beliefs.