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CA AG’s Attorney Says State’s Gender Secrecy Policy Not Enforceable, Only Guidance

In a surprising turn of events, California Attorney General Rob Bonta’s attorney declared in federal court last week that California’s secrecy policy compelling teachers to deceive parents about students’ gender dysphoria isn’t going to be enforced by the state. Why? Because the secrecy policy is only based on guidelines from the California Department of Education, not state law.   (Read full transcript)

After hearing the news, Assemblyman Bill Essayli (R-Corona) declared a parental rights victory and encouraged California school districts to “immediately repeal any secrecy policies that were implemented as a result of the unenforceable guidelines illegally issued by the Department of Education.” For the past year, Essayli has been working with a coalition of parental rights groups to get school districts to implement parental notification policies that require schools to let parents know if their child is asked to use a pronoun or name that differs from their official record.

But today, in response to Essayli’s statement, Bonta’s office released a statement to the Sacramento Bee that contradicts what Bonta’s attorney, Emmanuelle Soichet, declared in federal court.  “The guidance document itself does not have the force of state law; however, enforceable state law underlies the document,” today’s statement read. Consequently, the California Department of Justice “will continue to enforce and defend California’s anti-discrimination and privacy laws when they are violated.” 

“The Attorney General is talking in circles,” said Greg Burt, Vice President of the California Family Council. “Bonta and Tony Thurmond, representing the Department of Education, have been suing and intimidating school districts across California for adopting parent notification policies, claiming these violate state law. If that’s true, then how can their attorneys say the state’s secrecy policy was simply a suggestion, not an enforceable law?”

Bonta and Newsom’s attorneys made these statements against secrecy policies in a federal court case last Monday, hoping to keep Bonta and Newsom out of a lawsuit filed by two teachers from Escondido, who said their Constitutional rights were violated when asked to deceive parents about the gender identity of their students. This suit was filed last April, by Elizabeth Mirabelli and Lori Ann West, against Escondido Union School District (EUSD) and the California Department of Education. The case, Mirabelli, et al. v. Olson, et al., focused on school policies which required teachers to use  “pronouns or a gender-specific name requested by a student,” while “reverting to biological pronouns and legal names when speaking with parents in order to actively hide information about a child’s gender identity from his or her parents.” This became known as the Parental Exclusion Policy. 

When teachers Mirabelli and West took issue with the guidelines forcing them to use students’ “preferred” pronouns and names, the district allowed their request for a religious exemption, but they refused to make exceptions for the Parental Exclusion Policy, which required the two teachers to actively lie to parents about their children, in direct violation of the teachers’ moral standards and religious beliefs. 

In September 2023, the federal district court sided with the teachers in a landmark ruling, granting a motion for preliminary injunction, thus temporarily blocking the school district from enforcing the Parental Exclusion Policy. The presiding judge in the case, Judge Roger T. Benitez, stated that the policy “…harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long-recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs [teachers] who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students—violating plaintiffs’ religious beliefs.”

Shortly after the injunction was announced, Attorney General Rob Bonta sent misleading instructions to superintendents and education board members across school districts through a letter titled “Guidance Regarding Forced Disclosure Policies Concerning Gender Identity.” Following the letter, he issued a “legal alert” reiterating his stance in the letter, insisting that adhering to “outdated social stereotypes” by informing parents about their child’s gender discussions at school “violate[s] state law.” He argued that such disclosures without the student’s explicit consent would breach a school district’s legal responsibility to protect the well-being of the students. 

Due to these actions, the court ordered the plaintiffs to name Bonta and Governor Gavin Newsom in the lawsuit for their role in enforcing the Parental Exclusion Policy in direct violation of the injunction.

That brings us to the latest development in the case –  Bonta and Newsom both filed a motion to dismiss the lawsuit, saying the  teachers should only blame the school district for violating their Constitutional rights,  with their counsel stating on the record that both officials would “disavow any enforcement action against EUSD for any actions that EUSD takes in compliance with this Court’s order.” 

Bonta’s attorney, Soichet, further explained that the California Department of Education guidelines that said, “schools must consult with a transgender student to determine who can or will be informed of the student’s transgender status, if anyone, including the student’s family,” were “non-enforceable guidelines.” She went on to say, “There’s no one in the state who’s actually going to enforce those guidelines. And to the extent that EUSD believed it had to follow those guidelines as a mandate of state law, that — that is just an incorrect assumption.” (Quote on pages 8-9)

The attorney representing Mirabelli and West for the Thomas More Society, Paul M. Jonna, condemned state officials for their contradictory positions over their secrecy policies and for ignoring a federal court order. “While the Governor, AG, and other state officials have promised not to enforce these dangerous policies against our clients’ interests, they are actively involved in litigation against multiple school districts that have sought to enact policies that conform to the rationale of the Court’s order in Mirabelli – namely, policies that recognize that (i) parents have the right to know about their children’s gender identity and (ii) teachers cannot be forced to comply with these policies under the First Amendment,” he said.  

“In so doing, these state actors are actively undermining the Federal Court order in Mirabelli – and they are doing so at their own peril,” Jonna continued. “ We will litigate this issue as long and as hard as necessary to vindicate these important rights for parents and teachers – including eventually before the Ninth Circuit Court of Appeal and the U.S. Supreme Court.” 

“No teacher should be required to hide a student’s gender confusion from their parents, and no school has the right to determine what knowledge is permissible for a parent to know about their child,” Burt said. “We still have a hard fight ahead, but Bonta’s doublespeak shows he knows the end is near.”


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