Transgender rights vs. parental notification. California goes to court

Protesters with opposing views on parent and student rights face each other.

By Howard BlumeStaff Writer

April 15, 2024 3 AM PT

Supporters of a proposed November ballot initiative wanted the all-important title of their measure to reflect their beliefs, a name like “Protect Kids of California Act.” But Atty. Gen. Rob Bonta saw things differently when his office chose the name signature gatherers must use: “Restricts Rights of Transgender Youth.”

Among its provisions, the initiative in question — which has not yet qualified for the ballot — would require schools to notify parents if a child changed gender identification unofficially or in schools records, such as a roll sheet.

With a May 28 deadline to submit signatures — and 25% of the way to the goal — initiative backers must use the state’s description, which they say is hindering their effort. They have sued the state, claiming the initiative was “branded with a misleading, false, and prejudicial title” A hearing is set for April 19.

The litigation is one of several high-profile legal jousts in California’s education culture wars over policies that have taken hold mostly in a few deep red, inland or rural areas. In addition to parent notification, activists and conservative school board members have approved restrictions on library books and curriculum. The Newsom administration and its allies — including the attorney general and the state education department — have pushed back aggressively. Now, opposing sides are facing off in courtrooms with broad implications for state and local school policies.

“There are long-standing questions about what’s the role of the school versus what’s the role of the parents, and that’s true with regard to parent notification but it’s also true with regard to curriculum like sex education, for instance, or talking about LGBT issues in the classroom,” said Morgan Polikoff, a professor at USC’s Rossier School of Education.

In addition to the court case over the ballot name, partisans have taken each other to court over locally approved parental notification policies — or the lack of them.

Supporters believe parents have a fundamental right to be involved in all aspects of their children’s lives, especially on matters as consequential as gender identification. More broadly, proponents hope to energize a Republican and conservative religious voting base while attracting centrist voters, especially parents, for electoral wins down the road.

Democratic officials contend that blanket parental notification policies violate student privacy and civil rights enshrined in state law and the education code and that the near universal outing of transgender students to parents would put some children at serious risk.

The Chino Valley and Temecula school districts, both led by conservative boards, are being sued to rescind their parent-notification policies. In Escondido and Chico, however, it’s conservatives who have filed the litigation against state and local policies they consider too liberal and even immoral — casting themselves as protectors of the long-term interests of students they see as at risk of being drawn into a transgender lifestyle.

Other Southern California school districts where such issues are playing out have included Orange Unified and Placentia-Yorba Linda Unified in Orange County and Murrieta Valley Unified in Riverside County. A similar scenario has unfolded in Rocklin Unified and Dry Creek Joint Elementary, north of Sacramento, and the Anderson Union High School District in Northern California.

Collectively, these school systems represent a tiny fraction of the more than 1,000 in California, which is why a statewide initiative implanting their values in the state constitution could have such a sweeping effect.

What’s in a name?

Court battles over the names and descriptions of ballot measures occur periodically, with the law requiring that the attorney general affix a neutral title. At least 10 lawsuits sought changes to the descriptions of half a dozen ballot measures presented to voters in November 2020.

In the case of the proposed ballot measure related to transgender youth, supporters object not only to Bonta’s title but also a summary of the initiative that they contend in court documents is “inaccurate, blatantly argumentative, and prejudicial.” They said a title that includes “protecting students” could appeal to voters. One that focuses on limiting an individual’s rights might not.

The measure would also ban children‘s medical treatment or surgery to address gender dysphoria — distress caused when an individual’s biological sex does not match that person’s gender identity. It also would bar transgender students born as biological males from participating in girls sports, including at the college level. And it would delete an education code that allows students to participate in sports “irrespective of the gender listed on the pupil’s records.”

The current name, Restricts Rights of Transgender Youth, has made it harder to get signatures and attract donors to pay for signature-gathering, said lead proponent Jonathan Zachreson, who must collect 546,651 signatures from registered votes. He said he is reasonably confident the measure will qualify.

“Talking to our volunteers, we realized it did have a detrimental impact,” said Zachreson.

In a statement, the attorney general’s office defended its title and summary: “We take this responsibility seriously and stand by our title and summary for this measure. However, we cannot comment on pending litigation.”

Defenders of the attorney general’s language include parent and former teacher Kristi Hirst, leader of Our Schools USA, which is based in Chino and has attempted to counter the right-wing activists.

“The people screaming for ‘parental rights’ are trying to take rights away from my kids while telling me how to raise them,” Hirst said.

Chino Valley, a hot spot

Chino Valley Unified is at the center of litigation over its parent-notification policy, which resulted in a lawsuit led by Bonta. In a preliminary ruling, San Bernardino County Superior Court Judge Michael A. Sachs said the policy was discriminatory because it specifically targeted students who identify as transgender.

Under it, for example, parents were to be notified of any request by a student “to use pronouns that do not align with the student’s biological sex or gender listed on the student’s birth certificate or other official records.” The same notification rules applied to the use of bathrooms or participation in sports.

Sachs wrote in his January ruling that these policies “on their face, discriminate on the basis of sex.” In California, transgender individuals are a protected class against whom discrimination is not permitted. The judge noted that a straight male student who wanted to use a different name would not be subject to the policy.

In March, the Chino Valley Board of Education revised the policy, expanding it to all students. Under the revised policy, if any student “requests a change to their official or unofficial records, parents/guardians shall be notified to ensure that parents/guardians are informed and involved in all aspects of their child’s education.”

In other words, if a straight male student named William suddenly decided he wanted to be called Robert, his parents would be notified.

The revised notification rules apply to a potentially huge number of situations, requiring an alert to parents whenever their child “participates in school-sponsored extracurricular and cocurricular activities or team(s) immediately or as soon as reasonably possible.”

For instance, if a child joins a club, parents would be told. The policy, if followed, will keep administrators busy making many notifications to parents, a few of which would pertain to transgender students, the original aim of the policy.

“The updated policy maintains the district’s original requirement that school administrators notify parents within three days if their child requests changes to their official or unofficial records, but removed language from the policy requiring staff to notify parents when a student requests to use facilities or pronouns that differ from their sex at birth,” according to Liberty Justice Center, a firm with a national profile that has offered pro bono legal assistance and helped map out a legal strategy for Chino Valley and districts with like-minded school boards.

There’s a hearing to set a trial date in early May.

Different ruling in Temecula

The parent-notification policy approved by the Temecula Board of Education was essentially the same as the original version in Chino Valley. And Temecula also was sued — not by the state but by the local teachers union, individual teachers, students and parents.

But in this case, Riverside County Superior Court Judge Eric Keen did not stop the policy from going into effect. He concluded, at least preliminarily, that the rules applied equally to all students and were “gender neutral.”

That lawsuit also alleges the board majority is hostile toward LGBTQ+ topics and students — citing the board’s refusal to adopt state-approved curriculum for elementary schools that included a brief, optional passage in fourth grade about former San Francisco County Supervisor Harvey Milk, the state’s first openly gay elected official.

A threatened fine by Gov. Gavin Newsom prompted the board to approve the curriculum, which had been recommended by teachers and administrators and was in line with state learning standards.

The issue is not over. The board voted to move this fourth-grade lesson on California civil rights movements to the end of the year, to give time to find an “age-appropriate curriculum” that could be substituted in place of “sexualized topics of instruction.”

The lesson in question includes paragraphs noting that LGBTQ+ individuals and groups fought for civil rights, including the right to marry, but has no discussion of sex.

That Temecula teacher-led suit also seeks to overturn the district policy to restrict the teaching of critical race theory, which examines the extent to which racial inequality and racism have been systemically embedded in American institutions.

Critical race theory has been another culture-war flashpoint across the nation. The Temecula list of banned concepts embodies common conservative assertions, including that teachers use critical race theory to make white students feel guilty about being white. Many education experts consider this characterization of how teachers have been dealing with the topic of race to be inaccurate and incomplete.

Amanda Mangaser Savage, an attorney with the firm Public Counsel, which is pursuing the litigation against the Temecula school district, said she knows of no other California school system involved in litigation over critical race theory.

The lawyers who filed the case are preparing an appeal of the court’s ruling.

More to come

In a lawsuit involving the Escondido school district in San Diego County, a judge has issued a preliminary ruling allowing two teachers to opt out of a district student privacy policy, giving the teachers the freedom to notify parents about a change in their child’s gender identity. The case is ongoing.

In Chico, a parent lost a suit for damages over the school district not informing her about her child’s gender-identity issues. The ruling is being appealed.

Book restrictions also could be headed toward litigation, especially in light of a new state law limiting bans and censorship, according to advocates on both sides. So far, Chino Valley may be the only California school district to approve a policy that allows parents to flag books that contain “sexually obscene content considered unsuitable for students,” which would trigger the book’s immediate removal until the issue has been decided through a formal public hearing.

Conservatives say their goal is to remove sexually explicit and profane materials from school libraries, especially at the lower grade levels. Opponents portray these efforts as part of a campaign to enforce conservative religious beliefs in schools and to make LGBTQ+ students and their stories invisible within the school community.

One legal strategy used by conservative activists has been to submit public records requests to school systems — to search out policies and practices to which they object.

A Glendale teacher faced a death threat after records obtained this way indicated that she may have shown a gay pride video to students.

Los Angeles Unified, the nation’s second-largest school system, is the subject of a lawsuit for failing to turn over public records in the time frame required by law.

The group Center for American Liberty said that, starting in 2022, it requested documents related to critical race theory, transgender ideology and Marxism, as well as “certain financial records” related to COVID-relief funds “to give parents greater insight into what LAUSD school officials are teaching their children.”

“Nearly two years later, the LAUSD has given us almost nothing,” the organization stated. “This is illegal.”

A school district spokesperson said the district would have no comment on this pending litigation.