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Ninth Circuit Revives Suit Over School’s Secret Transitioning
Opinion Says District Court Applied Wrong Standard in Dismissing Constitutional Challenges to Policy Which Directed Staff to Refer to Students by Chosen Name, Pronouns Without Notifying Parents
By a MetNews Staff Writer
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AURORA REGINO plaintiff |
The Ninth U.S. Circuit Court of Appeals held Friday that a judge erred in dismissing a mother’s complaint asserting constitutional challenges to a Chico Unified School District policy that requires educators to refer to a student of any age by his or her chosen name and pronouns without disclosing the child’s transgender status to the parents, unless the minor decides otherwise.
In an opinion authored by Circuit Court Judge Morgan Christen and joined in by Circuit Judges Kim McLane Wardlaw and Mark J. Bennett, the court found that Senior District Court Judge John Mendez of the Eastern District of California applied erroneous legal standards to the substantive and procedural due process claims, filed under 42 U.S.C. §1983. The court revived the lawsuit and remanded for a proper analysis.
Christen wrote:
“Understandably cautious about improperly expanding substantive due process rights, the [District Court] borrowed a standard from the qualified immunity context and reasoned that a fundamental right is not sufficiently cognizable unless the right has been ‘clearly established[]’….Because existing precedent did not expressly address Regino’s articulation of her asserted fundamental rights, the district court held that the rights she asserted were not fundamental. This was error. We have never held that a plaintiff asserting a substantive due process claim must show that existing precedent clearly establishes the asserted fundamental right, and we see no reason to import this standard now.”
At issue is Chico Unified School District’s Administrative Regulation 5145.3 which prohibits “[r]efusing to address a student by a name and the pronouns consistent with the student’s gender identity” and “[r]evealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent.”
Challenging the regulation is Aurora Regino, who alleges that staff at Sierra View Elementary School secretly began referring to her daughter, A.S., by a new name and male pronouns in 2022, when A.S. was in the fifth grade.
After discovering that the school was treating her daughter as a boy without her knowledge, Regino filed a complaint in January 2023 against Superintendent Kelly Staley and members of the district’s Board of Education. In the operative complaint, Regino alleges:
“In early 2022, when A.S. was eleven years old, she informed a school counselor that she ‘felt like a boy.’ Within minutes of A.S. making that statement, the counselor asked A.S. if she had a boy name she would like to be called and whether she would like to be referred to with male pronouns….Thereafter, the District…required…administrators, teachers, and other students…to refer to A.S. by her new name and pronouns….The District kept its actions secret from A.S.’s mother, Ms. Regino.”
The pleading continues:
“The decision of whether to socially transition a child at school is a monumental decision in the life of the child….
“…[T]he District, acting pursuant to the Parental Secrecy Policy, cut Ms. Regino out of the decision-making process….[and] treated A.S. as a mere creature of the state and in a manner that is repugnant to the American tradition.”
Suffering From Anxiety
The plaintiff claims that A.S. had been suffering from anxiety and depression, caused by the recent death of a grandparent and Regino’s own cancer diagnosis, at the time she declared her transgender status. Regino says she was supportive of transition, but A.S. reclaimed her female status after she received help to address her mental health challenges.
Regino asserts facial and as-applied substantive and procedural due process claims as well as causes of action under the First Amendment.
In July 2023, Mendez granted the defendants’ motion to dismiss the operative complaint, without leave to amend, finding that Regino had failed to allege the existence of a “clearly established” fundamental right.
Mendez (an appointee of former Republican President George W. Bush) noted in the order granting the motion to dismiss:
“While reasonable minds may certainly differ as to whether Plaintiff’s policy preferences are advisable, this Court is not the venue for this political debate….The issue before this Court is not whether it is a good idea for school districts to notify parents of a minor’s gender identity and receive consent before using alternative names and pronouns, but whether the United States Constitution mandates such parental authority. This Court holds that it does not.”
Judgment in favor of the defendants was entered on July 11, 2023.
Due Process Rights
Christen said that “Regino alleges that Staley deprived her of her rights to both substantive and procedural due process” and “raises facial and as-applied challenges premised on each of these rights.”
As to substantive due process, she explained that the Fourteenth Amendment “protects individuals from state action that interferes with fundamental rights” that are objectively rooted in national history and tradition, and necessarily implicit in the notion of liberty.
She pointed out that “[t]he Supreme Court has long recognized ‘the fundamental right of parents to make decisions concerning the care, custody, and control of their children,’ ” but said that the right is not without limitations, pointing to compelled vaccination as an example and case law holding that parents lack a constitutional right to control the curriculum taught at schools.
However, the jurist declined to reach the question of whether Regino has adequately alleged a constitutional infringement, pointing out that the plaintiff’s characterization of the fundamental right at issue has “shifted over the course of this litigation” from “loosely invoked general parental rights” in the operative complaint to the “broad right to control…any ‘psychological treatment’ the State provides to her children” she advanced in her appellate briefing.
Saying that “[t]hese shifts in position” interfere with the requirement that the analysis begin with a “careful description” of the asserted fundamental right, Christen remarked that “[t]he district court had no opportunity to address the parties’ revamped arguments” and declared that “on remand, it will be critical that Regino clearly and consistently articulate the right or rights she is actually asserting.”
Procedural Due Process
Noting that procedural due process protects more than just fundamental rights, she concluded:
“In the district court’s view, Regino’s failure to adequately allege a fundamental right in support of her substantive due process claims necessarily foreclosed her procedural due process claims. This was error…”
Christen declined to separately address the First Amendment claims, commenting in a footnote that “Regino’s familial association claims under the First Amendment are entirely subsumed within her familial association claims premised on substantive due process.”
The panel did not address the impact of the passage of Assembly Bill 1955, which was signed into law by Gov. Gavin Newsom in July of last year, even though the court asked the parties to file “letter briefs addressing the effect” of the bill on the case.
The law bans rules requiring school staff to disclose a student’s gender identity or sexual orientation to any other person without the child’s permission.
The plaintiff’s response, prepared by attorney Josh Dixon, opined that “AB 1955 does not apply to parental disclosures that are required by federal law” and argued:
“AB 1955 does not require school districts to enact policies mandating parental secrecy when schools socially transition students. Rather, AB 1955 prohibits school districts from requiring school personnel to provide parental disclosure in that situation. Thus, AB 1955 has no impact on this case.”
The case is Regino v. Staley, 23-16031.
Last week, President Donald Trump’s administration announced that it is launching an investigation of the California Department of Education over Assembly Bill 1955, setting up a possible showdown over parental rights with billions of dollars in federal funding potentially at stake.
Harmeet Dhillon (a former attorney for Donald Trump and now assistant attorney general for civil rights at the U.S. Department of Justice) and her law firm Dhillon Law Group Inc. represented Regino in the District Court.
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