An appeals court this month upheld state law and policy that protect student rights to privacy — even when that privacy pertains to gender identity.
A panel of judges with the U.S. Court of Appeals for the Ninth Circuit granted a stay in favor of law and policy that allow schools to protect the confidentiality of LGBTQ+ students who may discuss gender identity or other issues with school staff.
The three-judge panel acted to place a temporary block on a federal court ruling issued in December in the case of Mirabelli v. Olson by Judge Roger Benitez. That ruling had found that California policy violates the constitutional rights of educators and parents.
Christine Parker, a senior staff attorney at the ACLU of Southern California, explained that the Ninth Circuit paused Judge Benitez’s ruling until the appeal is resolved.
“The panel correctly recognized the harm Judge Benitez’s decision would pose to LGBTQ+ students across the state — especially trans and gender non-conforming students — if allowed to remain in effect,” Parker said in an email to ChicoSol.
The ultimate outcome of the case could affect Chico Unified, which has been embroiled in a 2023 lawsuit filed by a Chico parent who challenged California law that protects children who have conversations with school staff that are understood to be confidential. That case was filed by Chico mom Aurora Regino.
The Ninth Circuit revived Regino’s case last year when it said U.S. Eastern District Court Judge John Mendez had erred in dismissing her claims.
Regino said she was not informed by Sierra View Elementary staff of her child’s use of a new name and pronouns in 2022, and in her lawsuit asserts her parental rights. She discovered that her daughter had met with a school counselor where the child indicated she would like to go by new pronouns.
EdSource has reported that the Benitez ruling may be at odds with another state law that went into effect last year. Assembly Bill 1955 prohibits public schools from requiring that staff disclose information about a student’s sexual orientation, gender identity or expression without that student’s consent.
The Mirabelli v. Olson case was filed in April 2023 by Escondido Union School District teachers Elizabeth Mirabelli and Lori Ann West. Their attorneys said they will appeal the Ninth Circuit’s stay.
The ACLU’s Parker called the Ninth Circuit stay “appropriate.”
“Judge Benitez’s ruling threatened to out trans and gender nonconforming students across California to their parents, even if they were not ready or able to be out at home or were navigating a less-than-supportive family dynamic,” Parker said. “This type of culture of outing students without their consent harms everyone – students, families, and school staff alike – by removing opportunities to build trust.”
Parker said she anticipates the Ninth Circuit will consider the case again on appeal.
“From there, if either side is dissatisfied with the Ninth Circuit’s decision on the merits of the case, they will have the option to seek review of that decision from the U.S. Supreme Court,” Parker added.
Natalie Hanson is a contributing writer to ChicoSol.