CHICAGO (OSV News) — The Thomas More Society announced Jan. 6 it would pursue a rehearing of its case against California’s laws that allow public schools to conceal how a student expresses their gender identity at school from their parents.
The case against the state at first succeeded and then was blocked by a federal appeals court while the state of California appeals the injunction against its laws.
The Catholic-run public interest law firm said it would take this step after the U.S. Court of Appeals for the 9th Circuit Jan. 5 temporarily blocked the Dec. 22 permanent injunction order of U.S. District Judge Roger T. Benitez, pending California’s appeal.
Next steps
In a news release announcing the society’s next steps, attorney Paul M. Jonna, special counsel for the Chicago-based Thomas More Society, said the group was “deeply disappointed” by the appellate court’s order and would go before the 9th Circuit “en banc.” He added the group will “simultaneously pursue review by the U.S. Supreme Court.”
An “en banc” hearing means 11 judges out of the 9th Circuit’s 29 judges would hear the case.
“While the fight continues at the appellate level, we remain confident that our clients’ constitutional rights will ultimately be vindicated,” said Jonna. “Parents have a fundamental right, recognized by the Supreme Court for over a century, to direct their children’s upbringing. Teachers have a constitutional right to communicate honestly with parents without being forced to deceive them in violation of their faith.”
“California cannot override these rights, and we are prepared to take this case as far as necessary — including all the way up to the Supreme Court — to protect the families and educators who are being harmed by these policies,” he said.
‘Impossible choice’
The Thomas More Society filed the case after it was contacted by two veteran teachers with the Escondido Union School District north of San Diego. The society said Elizabeth Mirabelli and Lori Ann West “faced an impossible choice” of either lying to parents about their students’ gender transitions, which violated their religious beliefs, or risking “retaliation and disciplinary action” for not keeping the information from the parents.
The Thomas More Society said as the case unfolded, parents “who had been directly harmed” by the same requirements of the state’s multiple “gender secrecy laws” joined as plaintiffs.
In the case filing, Benitez certified the case as a class action, creating two classes on behalf of the state’s public school teachers, and parents, who both oppose the laws.
Benitez granted the injunction, prohibiting any employee in the California state-wide education system from applying or implementing laws that would “permit or require” state employees to refer to students by their chosen name or gender at school but not when they communicate with their parents, or to conceal a student’s gender transition from parents, among other similar measures.
Parental rights
He said the secrecy laws were a “derogation of the parents’ federal constitutional right to care for and raise their children” and called them an “unwarranted aggrandizing of a student’s state-created right to privacy.” He also said the teacher plaintiffs and the class “hold religious beliefs that are being severely burdened by the imposition of the parental exclusion policies.”
In the class certification, he ordered California’s education department to include in its training materials specifically for support of LGBTQ+ students the following paragraph:
“Parents and guardians have a federal constitutional right to be informed if their public school student child expresses gender incongruence. Teachers and school staff have a federal constitutional right to accurately inform the parent or guardian of their student when the student expresses gender incongruence. These federal constitutional rights are superior to any state or local laws, state or local regulations, or state or local policies to the contrary.”
California’s education department immediately sought a stay of the permanent injunction.
In their unsigned decision granting a stay, the appellate judges said they “have serious concerns with the district court’s class certification and injunction for every parent of California’s millions of public school students and every public school employee in the state.”
The judges also called the injunction “sweeping, ambiguous” and said it “relies on a lax enforcement of class certification principles.” That, furthermore, it is based on “a faulty reading of the policies at issue.”
Temporary setback
In the news release, Peter Breen, executive vice president and head of litigation at Thomas More Society, called the stay a temporary setback.
“The district court’s thorough analysis of the constitutional issues remains sound. We will continue to stand with Elizabeth Mirabelli, Lori West, and the courageous families who brought this case forward. Their fight to restore transparency and parental involvement in California’s public schools is far from over,” he said.
Simone Orendain is an OSV News correspondent. She writes from Chicago.
