Ninth Circuit Suspends Injunction Blocking California Policy Limiting Teachers’ Disclosure to Parents of Student’s Changed Gender Identity

A short excerpt from the Ninth Circuit’s order yesterday in Mirabelli v. Bonta (Chief Judge Mary Murguia, joined by Judges Andrew Hurwitz and Salvador Mendoza):

Plaintiff-Appellees are four parents and four Escondido Union School District (“EUSD”) teachers who challenge a host of California state laws that Plaintiffs refer to as “the State’s Parental Exclusion Policies.” According to Plaintiffs, these challenged laws are described in the California Department of Education’s 2016 “Legal Advisory regarding application of California’s antidiscrimination statutes to transgender youth in schools” and its accompanying FAQs. The challenged policies allegedly violate teachers’ and parents’ constitutional rights by requiring teachers to hide a student’s gender nonconformity and social transition, including from the student’s parents, unless the student consents to disclosure of that information….

The district court certified the class of all California public school employees and parents of children attending public school who object to the challenged state laws under Rule 23(b)(2). On December 22, 2025, the district court granted permanent injunctive relief to all its members. The district court found that various California laws violate parents’ substantive due process and free exercise rights to be informed “after a student says or dresses in a way that suggests a non-conforming gender identity.” The district court also concluded that public school employees have free speech and free exercise rights to provide information about a student’s gender expression to the student’s parents.

Based on these conclusions, the court entered an injunction that bars State Appellants from “implementing or enforcing” “the Privacy Provision of the California Constitution … [and] any other provision of California law” that would “permit or require any employee in the California state-wide education system [to] mislead[] [a] parent or guardian … about their child’s gender presentation at school.” The injunction prohibits State Appellants from “permit[ting] or requir[ing] any employee in the California state-wide education system to use a name or pronoun to refer to [a] child that [does] not match the child’s legal name and natal pronouns, where a child’s parent or legal guardian has communicated their objection to such use.” The injunction directs the State to include a notice in educator training materials that: “Parents and guardians have a federal constitutional right to be informed if their public school student child expresses gender incongruence.” …

After considering the record at this preliminary stage, we conclude that the State Appellants have shown that “there is a substantial case for [a stay] on the merits.” …

First, we have serious concerns with the district court’s class certification and injunction that covers every parent of California’s millions of public school students and every public school employee in the state. Courts across the country, including in our circuit, have routinely rejected similar claims by parents and teachers due to lack of standing. Further, the district court failed to undertake the “rigorous analysis” required by Rule 23 before granting relief on a class-wide basis….

Second, the district court’s ruling reiterated that the State is “prohibiting public school teachers from informing parents of their child’s gender identity” through its “parental exclusion” policies, yet the district court failed to clearly identify the set of policies it relied on to reach this conclusion. A preliminary review of the record shows that the State does not categorically forbid disclosure of information about students’ gender identities to parents without student consent. For example, guidance from the California Attorney General expressly states that schools can “allow disclosure where a student does not consent where there is a compelling need to do so to protect the student’s wellbeing,” and California Education Code § 49602 allows disclosure to avert a clear danger to the well-being of a child, Cal. Educ. Code § 49602. It is thus not clear from the district court’s order which particular policies are problematic, and it is doubtful that all of those policies categorically forbid disclosure of information, again “suggesting that the injunctive relief ordered may have been broader than necessary,” and not “tailored to remedy the specific harm alleged.” {The district court’s injunction appears largely premised on the informal 2016 Legal Advisory and FAQ page posted on the California Department of Education’s website, which has been removed.} …

[W]e are skeptical of the district court’s decision on the merits, which primarily relies on substantive due process. The district court concluded that parents have the right to be informed when gender incongruence is observed and make the decision about whether future professional investigation or medical care is needed. But the Supreme Court has cautioned that we must be “reluctant to expand the concept of substantive due process,” Washington v. Glucksberg (1997), to avoid usurping “authority that the Constitution entrusts to the people’s elected representatives,” Dobbs v. Jackson Women’s Health Org. (2022).

Our sister circuit recently analyzed a similar claim in Foote v. Ludlow Sch. Comm. (1st Cir. 2025), and concluded that “using the [s]tudent’s chosen name and pronouns—something people routinely do with one another, and which requires no special training, skill, medication, or technology” is not a form of medical treatment that gives rise to a substantive due process claim. The district court distinguished this case from Foote, reasoning that Foote did not involve allegations of school officials misrepresenting the student’s gender transition when asked by parents. But the challenged policies here appear to be analogous to the policy at issue in Foote, which “provides that ‘parents are not to be informed of their child’s transgender status and gender-affirming social transition to a discordant gender identity unless the child, of any age, consents.'” We thus conclude that the State Appellants have made a strong showing that the district court likely erred in its substantive due process analysis….

Because the State has sufficiently shown a substantial case for relief on the merits based on the sweeping nature of the district court’s injunction, the dubious class certification, and the weakness of Plaintiffs’ substantive due process claim, we may grant the stay on those grounds alone and need not reach the remaining First Amendment claims. Nonetheless, we address those briefly.

First, the district court’s analysis of the parents’ free exercise claims relied on Mahmoud v. Taylor (2025), to conclude that the challenged policies triggered strict scrutiny and failed under that test. In Mahmoud, the Supreme Court applied strict scrutiny where a school district subjected “young children” to “unmistakably normative” books that “explicitly contradict[ed] their parents’ religious views” and encouraged teachers “to reprimand any children who disagree[d]” or “express[ed] a degree of religious confusion.” However, Mahmoud has been described as a narrow decision focused on uniquely coercive “curricular requirements.” As the Sixth Circuit explained, “[b]ecause Mahmoud‘s reasoning principally relates to curricular requirements, we are thus unpersuaded that it stands for the broad proposition that strict scrutiny is automatically triggered when a school does not allow religious students to opt out of any school policy that interferes with their religious development, including general operational policies that involve no instruction.” Here, the challenged policies appear to apply only when a student makes the voluntary decision to share their gender nonconformity with the school. We thus disagree with the district court’s cursory assertion that the challenged policies “impose a similar, if not greater, burden on free exercise” as the policies in Mahmoud. Accordingly, the district court improperly extended the reasoning of Mahmoud to the instant case.

Second, the district court’s ruling on the subclass of public school teachers’ free exercise claim is predicated on the challenged policies “requir[ing] teachers to withhold” information about a student’s gender nonconformity “with the knowledge that the information will be impossible for the parents to obtain from the school.” However, as explained above, the district court’s premise—that these policies categorically forbid disclosure of information—is contradicted by the record.

Finally, as Plaintiffs concede, the teachers’ free speech claim “rises and falls on parents’ rights.” Because State Appellants are likely to defeat the parents’ constitutional claims, we need not address the merits of the free speech claims here….

For an excerpt of the District Court’s opinion, which led to the injunction that the Ninth Circuit has stayed, see this post.