'Trifecta of harm'

A judge blocks a school policy that keeps a student's change of gender secret from parents

Photo by Michał Parzuchowski on Unsplash

A school policy in California that forces teachers to conceal from parents a student’s gender change threatens “a trifecta of harm” for the child, parents and teachers.

So said a US District Court judge when granting the preliminary injunction request of two public school teachers, Elizabeth Mirabelli and Lori Ann West, who potentially faced disciplinary action because of their belief that parents had “a God-ordained right to know” if their children were socially transitioning at school.

Under the Escondido Union School District policy—adopted during Covid-19 lockdown in 2020 and allegedly without parental or public input—disclosure of a child’s transgender status to anyone without “a legitimate need” for this information constitutes “discriminatory harassment” unless the child gives permission.

Disclosure of a child’s new name or gender is framed as prejudicial to the child’s privacy and safety; the policy identifies parents as among those not entitled to be informed. Similar policies are being promoted by activists internationally.

In his September 14 ruling, Judge Roger Benitez said the policy harms children in need of “parental guidance and possibly mental health intervention to determine if [their feeling of gender] incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse.

“[The policy] harms the parents by depriving them of the long-recognized [constitutional] right to care, guide and make healthcare decisions for their children.

“And finally, it harms [the plaintiff teachers] who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students [and thereby] violating plaintiffs’ religious beliefs.”

The judge cited other scenarios in which the right of parents to be informed would readily be recognised—

“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.

“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?”

Judge Benitez issued the injunction protecting the teachers from any penalty under the school policy, having decided their legal argument is likely to succeed at trial.

He said the policy violated their constitutional right to free exercise of religion, presenting them with an unlawful choice—“lose your faith and keep your job, or keep your faith and lose your job.”

The teachers had been involuntarily placed on leave.

As Christians, both teachers believed parents had a God-given responsibility to care and guide their children; they held that lying or deceiving parents was forbidden.

The teachers from Rincon Middle School were represented by a faith-based law firm, the Thomas More Society, which issued a media statement saying teachers had been put in “an untenable situation” by the school policy.

“Traditionally, educators have been viewed as highly significant players in a child’s development—partnering with parents, not supplanting them—in the incredibly important responsibility of raising children,” the firm said.

“The State of California and the Escondido Union School District have created an unconscionable scenario where it pits these two key influencers in a child’s life against one another by putting up an intentional curtain of dishonesty between them.”

The school district covers almost 15,000 students from kindergarten to grade 8.

Meanwhile, state Attorney General Rob Bonta has expressed concern over some school districts in California opting for policies that require parents to be told of a child’s social transition at school.

Mr Bonta described such policies as involving “a forced outing [which] poses a serious threat to the emotional, psychological and physical safety and privacy of transgender and gender-nonconforming students.”

Video: Searching for middle ground on paediatric gender transition

“[Social transition] may not be thought of as an intervention or treatment, because it is not something that happens within health services. However, it is important to view it as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning.”—interim report, England’s Cass review of youth gender dysphoria care

Problematic

In the Escondido school case, Judge Benitez said he gave “substantial weight” to the evidence of clinical psychologist Dr Erica Anderson, who is a gender clinician, trans woman and former president of the US Professional Association for Transgender Health.

“To place teachers in the position of accepting without question the preference of a minor and further direct such teachers to withhold the information from parents concerning their minor children is hugely problematic,” said Dr Anderson, who has emerged as a prominent voice for more caution in youth gender medicine.

In the District Court case, she argued that parents had to be involved in any response to a child seeking social transition, especially where it was sudden and there was “concern for possible excessive peer and social media influence.”

There has been an unprecedented surge in teenagers, mostly girls, rejecting their birth sex. American researcher Dr Lisa Littman has hypothesised “Rapid-Onset Gender Dysphoria” (ROGD) as a new pathway to this sense of disconnect between the sexed body and a felt “gender identity”.

The theory is that ROGD spreads online and through peer groups. These patients often have mental health disorders and other problems that persist after medical transition.

Video: Psychiatrist David Bell, a whistleblower in the controversy over the UK Tavistock gender clinic, on the risks of social transition

In the know

In her evidence in the Escondido case, Dr Anderson said: “Parental involvement is a critical part of the diagnostic process to evaluate how long the child or adolescent has been experiencing gender incongruence, whether there might be any external cause of those feelings, and [to allow] prediction of how likely those feelings are to persist.”

“It can be appropriate for parents to say ‘No’ to a social transition (whether at school or elsewhere) to, among other things, allow time for assessment and exploration with the help of a mental health professional before making such a significant change.

“Part of parents’ job is to help their children avoid making bad decisions.

“Best mental health practices abhor activity that drives a wedge between parents and children, creating distrust and tension.

“In all cases, parental consent is required to provide medical and psychological treatment to minors.

“In part, this is because the science of mental health recognizes that the best evidence regarding a minor’s mental and emotional well-being comes from first-hand accounts by parents, rather than biased accounts from immature children.”

“California could soon require judges to consider whether a parent affirms their child’s gender identity when making custody and visitation decisions under a bill that cleared the state Senate [last week]. The bill would not require judges to prioritize whether a parent affirms their child's gender identity over other factors. What affirmation looks like varies depending on the particular child and their age, said Assembly member Lori Wilson, a Democrat who introduced the bill. She has an adult son who came out as transgender when he was a teenager.”—news report, Associated Press

Ideology run wild

On the need to maximise parental involvement, Dr Anderson cited the latest guidelines (SOC-8) from the World Professional Association for Transgender Health (WPATH) and said she did not know of any professional body that would endorse a school policy allowing social transition without mental health evaluation or parental consent.

Asked by GCN what might be influencing schools to adopt such a risky position, Dr Anderson said: “The push for secrecy policies is coming, in my opinion, from misguided activism and gender ideology run wild.”

She said she was not troubled by any activist criticism that her evidence might help a religious conservative cause opposed to any paediatric gender transition at all.

“There are many false accusations and distortions,” she told GCN. “I am an advocate for transgender persons including children.

“My main objection is that teachers should not be forced to deceive parents and facilitate a double life for children [when it may not serve their best interests].” 

She agrees with Dr Ken Zucker, an international authority on youth gender dysphoria, that the recent practice of pre-pubertal social transition risks locking in this distressing condition and putting children on the path to medical intervention.

Dr Anderson concedes that the WPATH SOC-8 document is not quite clear on social transition and does contain statements that can be read as endorsing the start of this process as soon as the child or adolescent requests it; she opposes this advice.

“There may be circumstances in which students wish or need to undertake gender transition without the consent of their parent/s (or carer/s), and/or without consulting medical practitioners. If no agreement can be reached between the student and the parent/s regarding the student’s gender identity, or if the parent/s will not consent to the contents of a student support plan, it will be necessary for the school to consider whether the student is a mature minor. If a student is considered a mature minor they can make decisions for themselves without parental consent and should be affirmed in their gender identity at school without a family representative/carer participating in formulating the school management plan.”—LGBTIQ school student support policy, Victoria, Australia

Rights and duties

Although no parents were involved in the Escondido case, Judge Benitez said the two teachers were correct to argue that the school policy was “in direct tension with the federal constitutional rights of parents to direct the upbringing and education of their children.”

The judge cited case law on—

the long-established nature of these parental rights

the impulsive and ill-considered actions of youth and their susceptibility to negative influence

the inability of most children to make sound judgments about their own medical care

judicial rejection of the “statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children”

The judge was more sceptical about the teachers’ claim that the policy infringed their constitutional right to free speech in the sense that it forced them “to adhere to an ideological orthodoxy (with which they directly disagree), as a condition of their employment.”

As teachers, their speech at school including communication with parents was part of their activities as employees and not protected, the judge said.

He said they might make out a free speech claim if the school policy compelled them to “violate the law or deliberately convey an illegal message”—and the policy did appear to require them to misrepresent the gender status of children to parents in a way that infringed the constitutional rights of parents.

“Schools and teachers urgently need ministers to publish long-delayed transgender guidance to ensure that pupils are treated with consistency and fairness, the children’s commissioner for England has said. [Commissioner] Rachel de Souza said the guidance, which [UK Prime Minister] Rishi Sunak had promised to publish earlier this [northern] summer, should be issued as soon as possible, based on her conversations with parents, children and school leaders in England. ‘I think headteachers, families and children are calling for it, crying out for it,’ De Souza said.”—news report, The Guardian, 14 September 2023.

Cone of silence

In the Escondido case, Judge Benitez said the school policy was at odds with other pre-existing policy upholding the parental right and duty to be involved in their child’s education and forbidding any dishonesty with parents or the falsifying of information in school records.

The judge said it appeared the 2020 policy was little known within the school until it was promoted in a district-wide video conference in February 2022.

The teachers in the case had sought advice on what to say if a parent asked them directly about a child’s gender change at school.

They were told by lawyers for the school district they should refer the parent to the principal, telling the parent—

“[Your] inquiry is outside the scope of the intent of [parent-teacher] interaction and state that the intent of the communication may involve behavior as it relates to school and class rules, assignments, etc.”

However, the principal would also refuse to disclose unless the child approved.

Judge Benitez said: “Without a student’s consent (regardless of the student’s age), the school district operates within a veritable cone of silence. Parents are left outside.”

The school district denied the policy required teachers to “lie” to parents, but the judge disagreed—

“The policy requires plaintiffs to conceal from parents, by misdirection and substitution, accurate information about their child’s use of a new name, gender, or pronouns at school.

“It is one thing if the policy merely delegated the task of talking with parents about a student’s gender incongruence to dedicated, trained personnel. It is quite another to require teachers to withhold this information with the knowledge that the information will be impossible for the parents to obtain from the school.”

The judge was unconvinced by the school district’s defence of its policy on grounds of student privacy, saying “one element of a right to privacy is a reasonable expectation of privacy.

“A student who announces the desire to be publicly known in school by a new name, gender, or pronoun and is referred to by teachers and students and others by said new name, gender, or pronoun, can hardly be said to have a reasonable expectation of privacy or expect non-disclosure.” 

The school district also argued its policy was necessary under California state law, leading to the court’s focus on the FAQs for the School Success and Opportunity Act (Assembly Bill 1266).

These explained that teachers had to use a child’s chosen name and pronoun.

The FAQs “contemplate a sort of double set of books to be kept by a school district—specifically for transgender or gender non-conforming students,” Judge Benitez said.

“It is strongly recommended [in the FAQs] that schools keep records that reflect a transgender student’s birth name and assigned sex (e.g., copy of the birth certificate) apart from the student’s school records.

“Schools [are advised by the FAQs to] consider placing physical documents in a locked file cabinet in the principal’s or nurse’s office.”

“We argued [to Britain’s Equality and Human Rights Commission] that a school refusing to refer to a boy as a girl, or a girl as a boy, is not discriminating against a ‘trans child’. In fact it is protecting that child, because biological sex is a crucial factor in safeguarding. Why? Because schools (and every staff member in them) have a duty of care towards all their pupils and it is not possible to fulfil this duty of care while pretending that a child is the opposite sex and misleading others with a duty of care about this.”—statement, Sex Matters, 17 September 2023