S. Ct. Reinstates Trial Court Injunction Blocking Cal. Policy Limiting Schools’ Disclosure to Parents of Student’s Changed Gender Identity

From today’s opinion in Mirabelli v. Bonta:

[Plaintiff] parents object that [California] policies prevent schools from telling them about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification. The parents also take issue with California’s requirement that schools use children’s preferred names and pronouns regardless of their parents’ wishes….

[T]he [District Court] granted summary judgment for all plaintiffs and entered a permanent injunction in their favor. The injunction prevents the schools from “misleading” parents about their children’s gender presentation at school and their social transitioning efforts.  It also requires the schools to follow parents’ directions regarding their children’s names and pronouns. And it compels defendants to include in state-created or approved instructional materials a notice of the rights protected by the injunction.

The Ninth Circuit granted defendants’ motion to stay the injunction pending appeal…. On the free exercise issue, it relied on a not-precedential Sixth Circuit decision and brushed aside Mahmoud v. Taylor (2025), as “a narrow decision focused on uniquely coercive ‘curricular requirements.'” The Ninth Circuit expressed skepticism about the parents’ and teachers’ Fourteenth Amendment due process claim because it viewed those claims as seeking to expand the protection afforded by established precedent.

When the Ninth Circuit stayed the injunction, the parents and teachers filed this application seeking vacatur of the Ninth Circuit’s stay pending appeal….

We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim. California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” Mahmoud (citing Wisconsin v. Yoder (1972)). The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs and “impos[e] the kind of burden on religious exercise that Yoder found unacceptable.” Indeed, the intrusion on parents’ free exercise rights here—unconsented facilitation of a child’s gender transition—is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud.

California’s policies will likely not survive the strict scrutiny that Mahmoud demands. The State argues that its policies advance a compelling interest in student safety and privacy. But those policies cut out the primary protectors of children’s best interests: their parents. See Troxel v. Granville (2000) (plurality opinion). California’s policies also appear to fail the narrow-tailoring requirement. The State’s interest in safety could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse. For these reasons, the parents who object to the California policies on free exercise grounds are likely to succeed on the merits.

The same is true for the subclass of parents who object to those policies on due process grounds. Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” Pierce v. Society of Sisters (1925); accord, Meyer v. Nebraska (1923). The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health. Parham v. J.R. (1979). Gender dysphoria is a condition that has an important bearing on a child’s mental health, but when a child exhibits symptoms of gender dysphoria at school, California’s policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents’ rights to direct the upbringing and education of their children….

The denial of plaintiffs’ constitutional rights during the potentially protracted appellate process constitutes irreparable harm…. [And while e]veryone agrees that children’s safety is the overriding equity[, the district court] injunction here promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives. The injunction also permits the State to shield children from unfit parents by enforcing child-abuse laws and removing children from parental custody in appropriate cases….

The application to vacate the Ninth Circuit’s stay presented to Justice Kagan and by her referred to the Court is granted as to the parents but is otherwise denied [presumably with regard to a separate part of the District Court’s injunction which dealt with objections by teachers -EV].

Justices Thomas and Alito voted to “grant the application in full,” presumably including the portion related to teachers.

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, added this:

The parent-applicants are likely to succeed on the merits under a straightforward application of [the parental rights substantive due process] cases. California prohibits its public schools from informing parents of their child’s gender transition at school unless the child consents. The record in this case indicates that the State’s non-disclosure policy applies even if parents expressly ask for information about their child’s gender identification. One set of parents learned of their child’s transition at school only after the child attempted suicide. Strikingly, even after this tragic event, school administrators continued to withhold information about the student’s gender identification. California’s nondisclosure policy thus quite obviously excludes parents from highly important decisions about their child’s mental health, and is unlikely to satisfy heightened scrutiny. Our resolution of the parents’ likelihood of success on this claim is dictated by existing law…. [And] the parents are likely to suffer irreparable harm if California enforces its policy while this litigation winds its way through the courts….

Justice Kagan, joined by Justice Jackson, dissented, mostly on procedural grounds and to discuss substantive due process more broadly; I plan to blog further about that shortly. But here’s their brief discussion of the merits in the opinion:

I have no doubt that parents have [substantive due process] rights, even though unenumerated, concerning their children and the life choices they make. See Pierce; Parham. On the other side of ledger, of course, a State has critical interests in the care and education of children. But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line. And that would entitle the parents, at the end of the day, to relief. The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis … if it had followed our ordinary processes….

Justice Sotomayor voted to “deny the application in full.”

More soon on the emergency docket questions, the substantive due process discussion, and the role (or not) of parental rights when parents who want to allow their children to transition genders want the children to get surgery or hormone therapy that’s forbidden by state law.