9th Circuit denies California's request on gender policy

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(The Center Square) – The U.S. Court of Appeals for the 9th Circuit denied California’s emergency request to modify a U.S. Supreme Court decision involving a policy that allowed public schools to withhold information from parents about a student’s gender transition.

California filed an emergency motion seeking to revise the language of a permanent injunction against the policy, citing the need to address situations involving parents who might engage in abuse.  

Earlier this month, the U.S. Supreme Court ruled 6-3 that the California policies violated the First and 14th Amendments. The decision vacated a 9th Circuit stay order that had paused a lower court injunction blocking the gender policy.  

“Parents and guardians have a federal constitutional right to be informed if their public school student child expresses gender incongruence, teachers and school staff having a federal constitutional right to accurately inform the parent or guardian of their student when the student expresses gender incongruence,” the permanent injunction states. “These federal constitutional rights are superior to any state or local laws, state or local regulations, or state or local policies to the contrary.”

In its order, the 9th Circuit said any effort to modify the injunction in Mirabelli v. Bonta must be addressed by the district court, not the appellate court. 

“The district court retains jurisdiction to modify its injunction during the pendency of the appeal,” the order states.

In an interview with The Center Square, Paul M. Jonna, special counsel for the Thomas More Society, described California’s motion as a “desperate attempt.” 

“It was obviously a very desperate attempt to have the 9th Circuit improperly rewrite the injunction,” Jonna said. “It would have been an error on the part of the 9th Circuit to do so.”

“We’re glad that the 9th Circuit did not accept that invitation into error,” Jonna added. 

Jonna also pointed to language in the Supreme Court’s ruling indicating that the injunction does not prevent the state from protecting children in cases of abuse.

“The injunction … permits the state to shield children from unfit parents by enforcing child abuse laws and removing children from parental custody in appropriate cases,” Jonna said, quoting the ruling.

The Center Square reached out to the California Department of Education, which said it “cannot comment on pending litigation.”

In December, U.S. District Judge Roger Benitez certified the case as a class action and issued a permanent injunction against the state’s policies.

The Supreme Court’s ruling keeps in place a statewide block on school policies that allow educators to withhold information from parents about a student’s gender transition while litigation continues.

The Center Square reached out to California Attorney General Rob Bonta’s office for comment, but did not receive a response.