(CN) — The Ninth Circuit on Friday reversed a lower court’s ruling dismissing a complaint over a California school district using a student’s preferred pronouns without telling a parent, remanding the issue back to the district court.
A three-judge appeals panel found that U.S. District Senior Judge John Mendez applied erroneous legal standards to Aurora Regino’s substantive and procedural due process claims. The case now returns to Mendez for further proceedings.
The suit, filed in 2023, targeted a Chico Unified School District policy that stated school personnel must call a student by a name and pronoun consistent with their gender identity and only reveal their transgender or nonconforming status with the student’s written consent.
A daughter of Regino fell under that policy when in early 2022 she told a counselor that she “felt like a boy.” The child began using a different name and male pronouns, telling the counselor not to inform her mother.
That spring, the counselor met with the student and discussed topics like “top surgery” and “breast binding.” The counselor also advised the student against telling her mother. The student ultimately did tell her grandmother, who told Regino.
The mother’s complaint against Superintendent Kelly Staley argued that the policy essentially keeps social transitioning of a student secret from their parents while the school district enables that transitioning. That infringed on her constitutional rights because it makes school personnel transition her children without her consent or knowledge.
Dismissing the case without leave to amend, Mendez found that Regino didn’t argue a fundamental right existed.
“Regino did not precisely identify her asserted fundamental rights in her operative complaint, but she broadly asserted in briefing on the district’s motion to dismiss that the policy infringed: [1] her right to make medical decisions for her children, [2] her right to make important decisions in the lives of her children that go to the heart of parental decision-making, and [3] her right to maintain familial integrity and association,” wrote Ninth Circuit Judge Morgan Christen for the panel.
The lower court failed to perform a proper analysis when finding that Regino didn’t argue the existence of a fundamental right. Existing precedent didn’t address Regino’s argument about her fundamental rights, leading the lower court to rule that those rights weren’t fundamental. That was an error, the Barack Obama appointee wrote.
The lower court used the wrong standard when applying the law, putting an improper burden on Regino.
“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,” the judge added.
Pivoting to the question of whether the panel should undertake the analysis, Christen wrote that neither side has consistently argued the scope of their claims and defenses. That led it to remand the case back to the lower court.
Regino’s arguments have changed as the suit progressed, the judge wrote. Initially, she pointed to general parental rights. Later, she claimed a broad right to control any “psychological treatment” imposed by the state. She also said schools must tell parents about their child’s preferred gender identity.
“These shifts in position are problematic because they undermine the critical requirement that we begin the substantive due process analysis with a ‘careful description’ of the asserted fundamental right,” Christen wrote.
The judge added that it’s essential Regino clearly and consistently state the right or rights she’s invoking.
Staley also has made inconsistent arguments, Christen wrote. She’s said children have the same privacy interests about their gender identity as adults. However, she’s also said the district policy places a child’s decision about telling their parents under “adult surrogate review” to determine if it’s in the child’s best interest.
“The district court had no opportunity to address the parties’ revamped arguments,” the judge wrote. He added: “Thus, given the meaningful changes in the parties’ respective positions, we conclude that the best course is to vacate and remand.”
Attorneys for Regino and the school district couldn’t be reached for comment by publication time.
The appeals panel was rounded out by Circuit Judges Kim McLane Wardlaw, a Bill Clinton appointee, and Mark J. Bennett, a Donald Trump appointee.
It’s unclear how, if at all, this case would affect Assembly Bill 1955, called the Support Academic Futures and Educators for Today’s Youth Act. The law bans the forced outing of schoolchildren.
A federal judge currently is weighing whether the Chino Valley Unified School District has standing to sue over the law and if Governor Gavin Newsom can be a defendant.