The debate over whether schools should disclose a child's transgender identity to parents is sparking heated discussions in school boards and courtrooms.
The clash is between parental rights and a child's right to privacy.
At a recent Escondido Union High School District (EUHSD) board meeting, the issue was hotly debated. Some parents want their children to have privacy and feel safe expressing themselves at school. Others argue that it’s a parent’s right to be informed about their children's experiences.
EUHSD, like many districts, enforces a policy that prevents teachers from disclosing a student's gender identity to parents without the student's consent. This policy is in line with California laws protecting students from potential abusive situations at home. However, these protective policies are currently under scrutiny in school boards and courts statewide.
“That is the crux of the issue — what is more superior, a child's right to privacy or a parent's right to know about their child's life?"— Jillian Duggan-Herd, a family law attorney
Recently, The Classical Academies charter school system in North County changed its policy to no longer explicitly forbid teachers from disclosing a student’s gender identity. The charter school said it did so under threat of litigation.
“It fundamentally is about who really the the child belongs to,” said Dean Broyles, a constitutional lawyer whose wife teaches at Classical.
He sent a letter to the charter school system, he said, to inform the board that its policy would expose it to potential ligation. Broyles is part of the conservative National Center for Law & Policy that urged the Chino Valley Unified School District in Orange County to adopt its mandatory gender identity disclosure policy earlier this year.
“It's been our position that any policy that allows a school to keep secrets from the parents regarding their children violates the parental rights since protected by the U.S. Constitution,” Broyles said.
The U.S. Supreme Court has ruled that the 14th Amendment of the Constitution gives a lot of deference to parents regarding their children's upbringing, education and care. But under California’s Education Code, students have certain privacy rights.
“That is the crux of the issue — what is more superior, a child's right to privacy or a parent's right to know about their child's life?" said Jillian Duggan-Herd, a family law attorney.
She said with the Supreme Court’s 2022 Dobbs v. Jackson ruling, it’s hard to fathom that a student’s privacy rights would be upheld by the court. The Dobbs ruling overturned Roe v. Wade, which had protected the right to have an abortion in the U.S. The Roe case hinged on a woman's right to privacy.
“So the overturning of Roe v. Wade is that they found there was a privacy right, but they did not apply strict scrutiny to that privacy right, which is the right to have an abortion and your ability to have a child and have a say in how that happens," Duggan-Herd said. "They did not give that protection fundamental weight.”
Since the Dobbs ruling, a surge of laws and court cases by conservative groups has emerged, challenging school policies protecting students’ privacy.
In May, two teachers at Rincon Middle School in the Escondido Union School District (EUSD) sued, claiming the policy to protect students' right to privacy at school over their gender identity essentially forced them to lie to parents, which went against their religious beliefs.
Duggan-Herd said the timing of these cases is not coincidental.
“There's a bunch of strategy in it," she said. "There are a lot of politically affiliated groups that have interests on both sides of this argument, and I can see it from both sides. I'm a parent myself, and I can also see it from a student's privacy right.”
The suit against EUSD is fronted in part by the Thomas More Society, a conservative law firm that's been involved in lawsuits over abortion, religious freedom and the outcome of the 2020 election.
In September, a federal judge in San Diego issued a preliminary ruling against EUSD, saying the policy was likely unconstitutional. The decision is under review by the 9th Circuit Court of Appeals.
Duggan-Herd thinks the issue will ultimately be decided by the Supreme Court. Based on the current makeup of the court, she thinks proponents of parental rights might win, and that might cause some unintended consequences.
“How do we, on that continuum of things that can happen to a child within a school system during the day, what is reported and what is not?” she said.
It might lead to parents micromanaging the education system, she said, dictating the curriculum to be taught to their children and excluding anything they find disagreeable, such as evolution.
And caught in the crosshairs of this political debate are the students, who may not feel safe expressing their gender identity at home.
