A federal appeals court has revived California’s so-called parental exclusion policies that prevent teachers from notifying parents if their child starts to identify as a different gender. 

Last month, a federal judge, Roger Benitez, a President Bush appointee, granted a permanent injunction, blocking California’s so-called parental exclusion policies, which prevent teachers from notifying parents if their children identify as a different gender. 

But on Tuesday, a three-judge panel of the United States Court of Appeals for the Ninth Circuit — all three judges were Democratic appointees — ruled in California’s favor and stayed the order as the state appeals the injunction. 

The panel said it has “serious concerns” with Judge Benitez’s injunction, which “covers every parent of California’s millions of public school students and every public school employee in the state.”

The panel also said Judge Benitez “failed to clearly identify the set of policies it relied on to reach this conclusion.”

“A preliminary review of the record shows that the State does not categorically forbid disclosure of information about students’ gender identities to parents without student consent,” the judges wrote. 

The court noted that guidance from California’s attorney general, Rob Bonta, says that schools can “allow disclosure where a student does not consent where there is a compelling need to do so to protect the student’s wellbeing.”

“It is thus not clear from the district court’s order which particular policies are problematic, and it is doubtful that all of those policies categorically forbid disclosure of information,” the panel said.

Judge Benitez said in his order that the state did not demonstrate a “narrowly tailored policy.” He found that the parental exclusion policy does not “provide for an opt-out from school recognition and propagation of gender incongruent names.” He also said it does not “even acknowledge a parent’s constitutional right to direct their child’s religious upbringing.”

The jurist said that he offered two proposals to California’s attorneys to narrow the policy, one that would require schools to inform parents if their children start to identify as a different gender, and another that would require schools to send parents a questionnaire to ask if parents would like notification if their children start using different names or pronouns. However, he said the state declined to accept either of his proposals. 

A spokesman for Mr. Bonta said in a statement, “We are pleased that the Ninth Circuit has agreed we are likely to succeed on appeal in arguing that the district court’s injunction is unnecessarily vague, far more sweeping than necessary to remedy the alleged harms, reliant on faulty readings of the policies at issue, and contrary to longstanding principles of constitutional law.”

The plaintiffs were represented by the conservative Thomas More Society. A special counsel for the law firm, Paul Jonna, said, “We are deeply disappointed that this three-judge panel has taken the extraordinary step of staying a class-wide permanent injunction, disregarding the severe irreparable harm that will now occur to our clients and all members of the classes.”

“We believe the panel’s decision misapplied both the facts and the law,” he added.
The Thomas More Society said that it plans to ask the full Ninth Circuit to evaluate the case, and that it plans on filing an emergency request with the Supreme Court, asking for a stay of the appellate court’s decision.