New California Federal Court Declares That, In the Absence of Clear Legal Authority, Parent’s Challenge to District’s Policy Preventing Disclosure of Student’s Transgender Status Must Be Dismissed

08.10.2023

The U.S. District Court for the Eastern District of California recently dismissed a parent’s lawsuit against Chico Unified School District (“CUSD”) regarding its policy/regulation prohibiting disclosure of a student’s transgender status to their parent without the student’s consent. While unpublished, Regino v. Staley (E.D. Cal. July 11, 2023) No. 223CV00032JAMDMC, 2023 WL 4464845 provides insight into how other California and federal courts may handle similar lawsuits in the absence of clear legal authority on the issue.

The Regino case began when a parent brought a lawsuit against CUSD related to CUSD’s policy regarding transgender students. Specifically, the parent challenged CUSD’s Administrative Regulation 5145.3, regarding nondiscrimination and harassment as applied to transgender students. The parent claimed the regulation “permits school personnel to socially transition students expressing a transgender identity” and prohibits school personnel from informing parents of this change “unless the student expressly authorizes them to do so.” The regulation included an exception for disclosure in the event it was required by law or necessary for a student’s health.

The student, assigned female at birth, identified as male and expressly asked the school counselor not to inform their parent, whom the student believed would be upset. After a couple of counseling sessions, the parent alleged the school counselor socially transitioned the student by telling teachers of the student’s new name and preferred male pronouns. The parent also alleged the school counselor encouraged the student not to disclose their transgender identity to the parent.

The District honored the student’s request and did not inform the parent. The parent later learned of the student’s use of male pronouns and new name at school only after the student told their grandparent. The parent brought the lawsuit against CUSD, claiming the regulation violated substantive and procedural due process, and the First Amendment right to familial associations. After the parent’s motion for a preliminary injunction was denied,[1] the parent filed an amended complaint and CUSD filed a motion to dismiss the complaint in its entirety.

Regarding the due process claim, CUSD argued “the parental right to make decisions regarding the care, custody, and control of one’s children does not extend” to decisions regarding a student’s decision to socially transition. CUSD relied on two non-binding, but published, lower federal court cases in support of its argument. The first held that California’s constitutional right to privacy protects a student with respect to information about a student’s sexual orientation.[2] The second case from the district of Maryland held that “parents do not have a right to be informed of their child’s transgender identity by schools.”[3] CUSD asserted the regulation at issue only required CUSD staff to “respect the gender identity and privacy wishes of students.” Moreover, CUSD argued it had an interest in protecting students’ privacy and creating a “zone of protection.”

In response, the parent argued that “substantive parental rights” extended to the social transition of the child at school. In support of this argument, the parent claimed the regulation violated the parent’s right to make medical and important life decisions for the child. The parent also asserted that children are unable to provide informed consent to such “serious psychological treatment,” thus, parental consent is required.[4] The parent also relied on an unpublished federal court case out of Kansas, which noted that “parents must be included in any decisions regarding what names and pronouns their children are referred to in a school.”[5]

The court in Regino held the parent failed to support the due process claims. Specifically, the court held the parent was advocating for an expansion of parental rights that was not supported by prior case law. The cases the parent relied on did not support that the state (i.e. CUSD) had an “affirmative duty” to inform parents of their child’s transgender identity or obtain consent before socially transitioning the child at school. The court noted the reliance on the unpublished case was misguided, as that case did not address parental rights, but rather, was premised on religious freedom claims. As for CUSD’s regulation, the court noted the regulation was reactive, not proactive, as it did not force students to adopt transgender identities and did not prohibit students from informing their parents. Rather, under the regulation, CUSD staff is “directed to affirm a student’s expressed identity and pronouns and disclose that information only to those the student wishes, with an exception for the student’s health.” Thus, it is the student who decides to socially transition; not CUSD.

As for the parent’s claim that the regulation violated the right to an intimate family relationship with the child, the court noted that “[n]othing in the [r]egulation prohibits or discourages students and their parents from associating with each other.” In fact, as noted by the court, the regulation did the opposite — it prevented CUSD from interfering with the “parent-child relationship by allowing students to disclose their gender identity to their parents on their own terms.”

Overall, when dismissing the lawsuit, the court noted that “in the absence of an established constitutional right, the legislature is best suited to address” the question of a parent’s right to notice regarding their child’s gender identity. The court was careful not to express an opinion on the merits of CUSD’s regulation, or the circumstances of the case in general. Specifically, the court stated:

While reasonable minds may certainly differ as to whether Plaintiff’s policy preferences are advisable, this Court is not the venue for this political debate. The issue before this Court is not whether it is a good idea for school districts to notify parents of a minor’s gender identity and receive consent before using alternative names and pronouns, but whether the United States Constitution mandates such parental authority. This Court holds that it does not.

Accordingly, at least under federal law, the absence of clear constitutional or statutory authority, locally adopted rules should address each district or county office’s rules on parental notification vis-à-vis students’ rights to privacy.

Current Legislative Efforts:

As of the time of this Alert, there is no federal or state law directly addressing a school’s disclosure of a student’s transgender identity to their parent. As such, there is no clear legal directive requiring a school district to disclose such information to a parent or guardian or to withhold such information pursuant to a student’s request. However, legislation has been introduced at both the federal and state level addressing the issue.

Current State Guidance on the Issue:

In the absence of clear law or statute on point, the California Department of Education (“CDE”) issued guidance in the form of a “Frequently Asked Questions” bulletin.[6] The current guidance from the CDE discourages schools from notifying parents of a gender transition, unless the student gives consent. The guidance states: “Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination laws by increasing the student’s vulnerability to harassment and may violate a student’s right to privacy.” The guidance cites California’s constitutional right to privacy under Article I, Section 1. The guidance also expresses concerns regarding student safety by stating not all “transgender or gender nonconforming students may [] express their gender identity openly in all contexts, including at home.”

While CDE guidance is not adopted law, the CDE is the state administrative agency responsible for investigating complaints of gender and sex discrimination against California public schools. Absent clear legal authority on the issue, the CDE guidance provides insight into how the agency would evaluate such complaints and how other state agencies would respond. Further, at least one California school district is being investigated by the state Attorney General related to the adoption of a parental notification policy.

Education Code section 49602 also provides specific guidance regarding the release of information provided by a student or parent in the course of the student or parent receiving mental health counseling. Such information may not be released without student written consent except in limited circumstances, such as a suspicion of child abuse or aversion of a clear and present danger to the health, safety, or welfare of the pupil or administrators, teachers, school staff, parents, pupils, and other school community members (including indication by the pupil that a crime has, or will be, committed involving personal injury or significant or substantial property losses). (Ibid.)

Conclusion:

Districts and county offices of education are encouraged to consult their legal counsel regarding the risks of adopting a policy to either require disclosure without prior student consent or prevent disclosure without express student consent. Additionally, given the risks of litigation, districts and county offices of education should consult with insurance carriers about coverage determinations.

For further information regarding the content of this Alert, please contact your AALRR attorney or the authors of this Alert.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process.

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[1] Regino v. Staley (E.D. Cal. Mar. 9, 2023) No. 223CV00032JAMDMC, 2023 WL 2432920

[2] Nguon v. Wolf (C.D. Cal. 2007) 517 F.Supp.2d 1177, 1196.

[3] John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ. (D. Md. 2022) 622 F.Supp.3d 118, 130.

[4] In making this argument, the parent relied on Mann v. County of San Diego, which held that parental consent is required for physically invasive medical examinations of minors. (9th Cir. 2018) 907 F.3d 1154, 1162.

[5] Richard v. USD 475 Geary Cnty., KS Sch. Bd. (D. Kan. May 9, 2022) No. 522CV04015HLTGEB, 2022 WL 1471372, at *8.

[6] https://www.cde.ca.gov/re/di/eo/faqs.asp