In California Ruling, Transparency Prevails over Gender Secrecy

In a ruling ending gender secrecy in California public schools, a federal judge on Monday trashed regulations requiring state education employees, including teachers, to hide from parents any evidence that their children are switching genders at school.

“The court has fully and permanently dismantled gender secrecy policies across the state of California,” said Paul Jonna, a partner at LiMandri and Jonna LLP and special counsel to the Thomas More Society.

Jonna represented Elizabeth Mirabelli and Lori Ann West. The two Escondido teachers sued their school district for following state Department of Education secrecy regulations – regulations they say violate their rights under the First and Fourteenth Amendments.

Asserting that children have privacy rights that supersede the rights of their parents, California Attorney General Rob Bonta argued that the state’s parental exclusion policy, Department of Education Administrative Regulation 5145.3, protects gender-fluid kids from violence.

That’s “a laudable goal,” wrote Judge Roger Benitez in his summary judgment. “The problem is that the parent exclusion policies seem to presume that it is the parents that will be the harassers from whom students need to be protected. Even if the State Defendants could demonstrate that excluding parents was good policy on some level, such a policy cannot be implemented at the expense of parents’ constitutional rights. The difficult and long-lasting issues of gender nonconformity leave parents to suffer adverse consequences over a lifetime. The State Defendants, on the other hand, have no personal investment in a student’s health and the State Defendants will not be exposed to a lifetime of a student’s mental health issues. Instead, that will be the parents’ grief to bear alone.”

Benitez was especially hard on Bonta, a likely candidate to replace termed-out Governor Gavin Newsom in 2026. A fierce ally of California’s powerful teacher unions that backed the secrecy law, Bonta was first into the breach, defending the idea that parental authority is subordinate to the state’s interest in masking children who express what the judge calls “gender incongruence.”

That was too much for Benitez.

“California’s education policymakers may be experts on primary and secondary education but they would not receive top grades as students of Constitutional Law,” Benitez wrote. “They misapprehend the supremacy of federal constitutional rights. They misperceive federal constitutional rights belonging to parents as weak-kneed and frail and subservient to the student’s right to privacy. Yet, under federal constitutional law, ‘parents retain a substantial, if not the dominant, role.’

“How did they arrive at this miscalculation?” the judge asked rhetorically. “The State Defendants mix up legal constructs. The Attorney General on behalf of the State of California says Plaintiffs’ lawsuit is ‘properly understood as seeking a federal constitutional exemption from the California constitutional right to privacy, as applied to gender identity in the school context. But the Attorney General gets it upside down. Plaintiffs do not ask the State to magnanimously permit a sort of federal constitutional exemption. What Plaintiffs seek is to force the State to respect their enduring federal constitutional rights as citizens of the United States.”

In his simultaneous permanent injunction, Benitez imposed on California three requirements: State officials are prohibited “from misleading the parent or guardian of a minor child in the education system about the child’s gender presentation at school”; the state must “provide forthwith, by personal service or otherwise, actual notice of this order to all personnel who are responsible for implementing or enforcing the enjoined provisions” and provide the court with “proof of such notice” within just 20 days.

Most damning, Benitez ordered California to include in all materials a statement he printed in bold:

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.

Bonta’s office asked the judge for a stay within hours of the decision. In that filing, Bonta says, “The severe public harms associated with nonconsensual disclosure of a student's private gender identity information weigh strongly in favor of stay.” If the judge’s injunction stays in place, “teachers and school officials could begin informing parents about students’ gender identities in ways that threaten substantial harm to students. Once that occurs, the harm is irreparable. The information cannot be undisclosed.”

Ironically, Bonta has been silent on the number of skyrocketing claims of men and women alleging they’ve been sexually assaulted in the state’s schools. Attorney John Manly says the state secrecy policies advanced by Bonta and others are part of the problem.

“I’ve handled hundreds of public-school cases,” Manly said. “In the majority of those, perpetrators of molestation told their victims, ‘This is our secret. Don’t tell your parents. Don’t tell adults. Don’t tell anybody.’”

Manly launched his legal practice by winning eye-popping settlements from the Catholic Church.

“The common thread [between the Catholic Church and public-school scandals] is secrecy,” Manly says. “You’re telling kids to keep sexual secrets, including gender issues, from their parents. It’s a bad idea. I’m telling you, sending that message to kids is a very, very bad idea. I can’t tell you how many more cases there will be where adults are telling children — their victims — ‘This is our secret.’”

What would he recommend?

“You need a policy where children aren’t told to keep secrets from their parents or other caregivers,” Manly says.

Jonna, the teachers’ attorney, is pessimistic about Bonta’s chances when asking Benitez to stay his injunction.

“We created a robust record with substantial expert testimony,” Jonna said. “Judge Benitez correctly analyzed the complex legal and factual issues. The state’s decision to double down on these unconstitutional policies has only backfired — and the same thing will happen if they appeal: The ruling will be affirmed and ultimately create binding national precedent, protecting even more parents and teachers.”