(Daily Signal)—A Southern California school district requires teachers and staff to notify parents when their children say they have been bullied, are considering self-harm, or decide to publicly identify as a gender opposite their biological sex at school.
But California’s Democratic attorney general, Rob Bonta, sued the district to block that policy, claiming that it violates the state’s constitution; specifically, the students’ privacy rights.
Emily Rae, senior counsel at the nonprofit Liberty Justice Center, sat down with “The Daily Signal Podcast” to break down the issues at the center of the case. Her organization represents the Chino Valley Unified School District, the Los Angeles-area district whose policy Bonta opposes.
“While it is true that students have certain privacy rights, this is not a case that violates those privacy rights,” Rae said. “The child is going to school; the policy is only triggered or enforced if the child actually goes to a teacher or a school administrator and affirmatively says, ‘I want to go by a different name. I want to use different pronouns. I want to use a different bathroom.’”
“You know, this is an action that the student is taking, and it’s public in school,” she noted. “Anyone who works at the school needs to know this so that they don’t ‘misgender’ a child or ‘deadname’ a child. The only people who don’t know are parents, and that is absolutely not OK.”
(“Misgendering” involves referring to a person who claims to identify as transgender with the pronouns associated with their biological sex, while “deadnaming” involves referring to a person who claims to identify as transgender by his or her original name, as opposed to the name associated with his or her stated gender identity.)
The San Bernardino Superior Court issued a temporary restraining order Sept. 6, barring the Chino Valley Unified School District from enforcing its policy. Yet about a week later, Judge Roger T. Benitez in the U.S. District Court for the Southern District of California granted a preliminary injunction preventing the Escondido Union School District from punishing teachers Elizabeth Mirabelli and Lori Ann West if they notified parents about a child’s claimed transgender identity.
The Escondido school district’s policy mandates that teachers and school staff will immediately accept a student’s claimed transgender identity and hide it from parents or guardians unless the student consents to notifying them.
Benitez ruled that Mirabelli and West are likely to succeed in arguing that the school district violated their First Amendment right to the free exercise of religion. The judge ordered the school district—and the California Board of Education—not to punish Mirabelli and West should they break the district’s policy.
Benitez cited nine Supreme Court rulings declaring that “parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of their children.”
Bonta has suggested that the Escondido case has nothing to do with the Chino Valley case, but Escondido’s lawyer, Paul Jonna, a partner at LiMandri and Jonna LLP and special counsel to the Thomas More Society, said Bonta is defying Benitez’s order.
“The court’s analysis in the Mirabelli opinion focuses on the First Amendment and explains under the 14th Amendment parental rights are being violated by this policy,” Jonna told The Daily Signal last month. “If this policy in our case violates the U.S. Constitution, 14th Amendment, parental rights, that would apply anywhere in the state.”
Jonna sent an open letter to the California attorney general, warning, “If California continues to openly defy Judge Benitez’s preliminary injunction, and undermine its holding and reasoning, an injunction against the Chino Valley litigation may be necessary.”
Rae noted that “at the heart of both cases is the same idea, that schools should not be able to keep secrets from parents.”
She also noted that California law already stipulates that if parents are abusing or neglecting a child, the state should intervene. Bonta’s preferred transgender-secrets policies are based on the idea that parents who disagree with the state’s ideology on gender represent a threat to their own children, regardless of any evidence to the contrary.
“So, anyone that’s trying to say that kids can get hurt because of this, it’s a red herring,” Rae argued.
Listen to the podcast below or read the lightly edited transcript:
Tyler O’Neil: This is Tyler O’Neil. I’m managing editor at The Daily Signal. I am honored to be joined by Emily Rae. She is the senior counsel at the Liberty Justice Center, which is representing Chino Valley Unified School District in an important lawsuit being filed by California Attorney General Rob Bonta. Chino Valley is defending a rule that requires teachers and the school district in general to notify parents if their children claim to identify as a gender opposite their biological sex.
Emily, it is such a pleasure to have you with me.
Emily Rae: It’s great to be here. Thanks so much for having me.
O’Neil: Would you walk us through a little bit of this case? I mean, from what I understand, I read the Chino Valley Unified School District’s policy, it seems very moderate, like it’s actually addressing many of the concerns that people on the pro-transgender side might have while also acknowledging the fundamental role that parents play in the lives of their children.
Rae: Absolutely. This parental notification policy is actually broader than simply relating to children who want to socially transition at school. It involves notifying parents if students are getting bullied, if they get hurt at school, if they express a desire to self-harm—important information about kids that happens at school that parents need to know.
And this is one of those things, if a child wants to socially transition at school, something that they will tell their teachers, school administrators, other students will know about it. The only people who the state wants to keep in the dark are parents.
So Chino Valley said, “No, that’s not OK. This is something that’s really important that parents need to know. They need to be involved in the conversations with teachers and participate and partner with schools to come up with a plan for the child together and be involved in that process.”
O’Neil: And the attorney general, Rob Bonta, has argued that the Chino Valley school district’s policy violates the California Constitution, specifically passages regarding protection of a right to privacy, a few other rights of the equal protection clause, they claim. How do you respond to those claims and is there a higher standard than California law that you would mention?
Rae: Well, first off, there is a fundamental right to parent that is, it’s a federal constitutionally protected right. It is grounded in the 14th Amendment. And it basically says that parents have the right to direct the upbringing and education of their children.
This is a right that the Supreme Court has said exists for over 100 years. It continues to be affirmed when it goes to the Supreme Court. So that is the overarching constitutional right here.
As far as Bonta claims, they don’t have the authority to bring this suit. While it is true that students have certain privacy rights, this is not a case that violates those privacy rights, right?
The child is going to school, the policy is only triggered or enforced if the child actually goes to a teacher or a school administrator and affirmatively says, “I want to go by a different name. I want to use different pronouns. I want to use a different bathroom.”
This is an action that the student is taking and it’s public in school. Anyone who works at the school needs to know this so that they don’t misgender a child or deadname a child. The only people who don’t know are parents. And that is absolutely not OK.
O’Neil: Well, yeah, and I think that gets to the point. We’ve heard Rob Bonta repeatedly say that this is a forced outing policy, that policies like this put children who claim to identify as transgender in harm’s way. And how do you respond to that rhetoric?
Rae: I say that parents are the guardians of their minor children. They have their best interests at heart. They love their children.
Bonta acts like this policy is going out to strangers or to criminals or something, and just telling them about children’s lives. No, we are talking about a child’s parents here. And it’s just absolutely ridiculous to say that a government, a school, can keep secrets from parents, especially about information that is so important about the child’s life.
O’Neil: … I’ve been following this case, I think it’s huge. Actually, let’s talk about this real quick. There was a temporary restraining order that the judge issued in your case, directing Chino Valley Unified to not employ its policy for … a limited period of time. I believe it ends next month. But yeah, can you walk through that, what it means, what it doesn’t mean in particular?
Rae: Sure. So, a couple of things. That was a hearing in front of Judge [Thomas] Garza. It was what’s called an ex parte hearing, which is kind of an emergency hearing. When you have a temporary restraining order, everyone kind of rushes into court. It’s supposed to be on an emergency basis. So it was not fully briefed. The judge did not read our opposition. We didn’t fully present all of our evidence and our legal arguments. So that is the context of that [temporary restraining order] hearing.
We are going back to court on Oct. 13 for what’s called a preliminary injunction, to argue that the restraining order should not be in place and that we should be allowed to have this policy throughout the pendency of the lawsuit, and that will be in front of a different judge.
O’Neil: Cool. There is a similar—it’s interesting. It’s a different case on a very similar issue, and this is actually in federal court, and this had been fully briefed. So just briefly, I mean, this case in regards to the Thomas More Society, they’re representing two teachers in—let’s see, where is it?
Rae: Escondido.
O’Neil: Yes. Yeah, Escondido Union School District. These two teachers are saying that the school district, which has the exact opposite policy of Chino Valley, it’s saying that—so the policy says that if a student claims to identify as a different gender, then the school has to not notify parents unless the student specifically says that they can do so.
And this has led to a perverse situation where the school ordered these teachers to lie to parents, or so the teachers claim, and they got a list of all the kids who claim to identify as a gender opposite their biological sex and notes saying, “Oh, their parents, their legal guardians don’t know this, therefore, refer to them this way.” And so it’s clear directions to lying.
Anyway, this case was fully briefed and a judge issued a different sort of order. This was a preliminary injunction saying … that, first of all, the argument you just made to me that the U.S. Constitution protects the rights of parents to bring up their own children and make health decisions for them, and that the Supreme Court has repeatedly upheld that, but also saying that the school district can’t punish the teachers if they violate this policy.
How does this order refer to your case or is there any involvement there? Or are these two—because Rob Bonta has claimed they’re two entirely different issues. Don’t look at the man behind the curtain in Escondido school district. Don’t look at the judge’s ruling that the policy Rob Bonta supports may have violated the U.S. Constitution, much less the California Constitution.
Rae: Yeah. At the heart of both cases is the same idea that schools should not be able to keep secrets from parents. That’s what this all boils down to.
Judge [Roger] Benitez’s decision in the Southern District of California was very well reasoned. He relied on expert testimony. He went through in depth over a century of Supreme Court cases talking about the issue of the constitutional right to parent and ultimately came to the conclusion that schools cannot force these teachers to keep secrets from parents.
So of course it relates … well, there are some similar and some different legal issues between the two cases that I won’t get into. The overarching theme that parents have a right to direct the upbringing of their children and that schools can’t interfere with that is the same between both cases and it’s very good for us.
O’Neil: So is it possible, or perhaps even likely, I mean, naturally you are focused specifically on the Chino Valley Unified School District case, but is it possible or likely that the federal judge will issue some sort of ruling or some sort of overarching claim, saying, “Look, this ruling here in Escondido Union School District applies to the state of California and we are subsuming the Chino Valley case into that case”?
Rae: I would not say that that is likely. However, every time a judge issues a decision in a case that’s similar subject matter to other cases, you can always use it as persuasive authority in your own case. But as far as the judge taking our case under the existing case in Escondido, I don’t see that happening.
O’Neil: But you would say that this preliminary injunction strengthens your arguments—
Rae: Absolutely.
O’Neil: … in Chino Valley?
Rae: Absolutely.
O’Neil: And you plan to bring that as evidence next month?
Rae: Yes.
O’Neil: Yeah. Wonderful. I want to talk a little bit about the broader issue, as you’re saying, hiding the truth from parents.
We just saw, and obviously let me know if this is something you can’t comment on because you’re specifically focused on this case, but we just saw [Gov.] Gavin Newsom sign a bunch of bills that are furthering many of the ideas in this issue, particularly there’s AB 5, which is called the Safe and Supportive Schools Act, now a law that he signed where they’re mandating teachers to have an LGBT cultural competency training for teachers and other employees that trains teachers to look at potential threats to children that includes parents in situations like this.
Do you think that that law or that policy that they’re pushing there has any bearing on this case?
Rae: No, because California already has those laws. Every state in America already has those laws that if a teacher as a mandatory reporter knows that a child is being neglected or abused at home, they have to report it to the state and [Child Protective Services] has to get involved. These laws are not new. We have had them for a very long time.
So anyone that’s trying to say that kids can get hurt because of this, it’s a red herring. The issue that really matters is that parents love their kids and parents need to know information about their kids to help their children make decisions and keep them safe. And that is what is at issue here.
O’Neil: So yeah, I think that gets to the crux of the issue. If teachers have a reason to believe that the parent does actually pose a risk to the child, they’re required to report that. This is an ideological push on behalf of Bonta and others, essentially, assuming that parents are a threat to children, if they might not support a child’s claimed gender identity, but in the complete absence of any evidence and in a situation where if parents did pose that concrete harm that they’re claiming is involved here, then there already are structures in place to protect the child.
Rae: Yes, that’s right.
O’Neil: Can you walk me through the way it works in California if a teacher has real concern that parents might be threatening or abusing their child?
Rae: Sure. That’s something that teachers, doctors, psychologists, anyone who is a mandatory reporter under the law would need to report it to the police. The department of Child Protective Services would get involved. There would be an investigation that’s open. The child may or may not be removed from the home during that process, just depending on the individual’s situation. And you would go from there. And if there is a threat to a child, if they are being neglected and abused, they would be removed to the custody of the state.
O’Neil: And what kind of evidence would the state need in a situation like that?
Rae: Evidence that the child is being abused or neglected. I mean, there’s a variety of evidence that can be used. And I will say, this is not my specialty. I have worked in CPS law in the past in limited capacities, which is why I’m able to speak to this a little bit. But it just depends on the situation. And the state will work to keep the child safe. That’s what we as a society want. We want to keep children safe.
So if there’s the threat that a child is unsafe with their parents in those very limited, rare instances, then the state will step in. But that is not what’s an issue with this policy. This policy, it’s just about letting parents know what’s going on with their children so that they can be involved with this process.
O’Neil: So if a parent does disagree with a child’s stated gender identity, that wouldn’t necessarily count as evidence that CPS would need to be involved?
Rae: Absolutely not. I mean, parents disagree with things that their kids do all the time. This is not something that’s new or novel. Right?
O’Neil: Right. And I think what is also an issue here is this notion that the child knows better than the parents to the degree that the school needs to hide from the parents what the child is really doing, even though it’s a public matter at school, as you mentioned.
Rae: Yeah. The whole thing is ridiculous. Children’s brains are still developing. They’re still developing maturity. I mean, they don’t see the world the way that an adult is, and they won’t for years beyond K-12 education. So why anyone expects children to know better about their own lives is beyond me, when we don’t expect children to know better about their own lives in any other respect. That is why they’re minors. That is why they have a legal guardian until they’re 18.
O’Neil: Right. And I think in these issues in particular, it’s kind of thorny because the interventions here have lifetime impacts and can lead to someone being sterilized, can lead to medical interventions that many doctors—and I believe there’s a case in Florida where a court is specifically considering the claim that these are experimental procedures, like the Florida government has said, “This is experimental medicine, therefore, it doesn’t fall under Medicaid.” But there is a very heated debate over these procedures, and it stands to reason that parents might disagree with the idea that their kid should be medicalized in this way.
Rae: Right. And this lawsuit isn’t even going that far. We aren’t here to debate what is good or bad in this situation. I mean, the scientists are there to have that debate. All we’re saying is that parents need to know. It is their right to know. It is what’s best for the children that they know.
And we need to bring parents back into schools. We need to let them know what’s going on. And we need to support teachers and parents talking and partnering together to make sure that what happens is best for the child.
O’Neil: And earlier this week, Rob Bonta issued guidance to every school district across California, essentially threatening them, saying, “Look, if you have a policy like Chino Valley’s, we are going to go against you. And this is violating California law. And by the way, pay no attention to Escondido Union and the court ruling there.” Would you say that that piece of guidance shows a disdain or that he’s defying the federal court order?
Rae: I don’t know what Bonta knows or thinks or doesn’t know or think, but the law is very clearly on our side here. We feel very confident in our ability to fight this and win. So he can say whatever he wants, but at the end of the day, it’s going to come down to what a court says, and we are in the right here.
O’Neil: So what does the case look like going forward? You’ve mentioned Oct. 13, you have another hearing that’s specifically on the lawsuit going forward. I think it’s regarding the issues of the temporary restraining order.
Rae: Right. It’s a preliminary injunction. So the temporary restraining order is just that, it’s temporary. It lasts about a month. And so the Oct. 13 hearing is to decide whether that original ruling, the ruling that was made on an emergency basis where the judge didn’t have time to consider all of the evidence, if that should go forward or, as we argue, that should not go forward and we should be allowed to continue enforcing the policy during the pendency of the litigation.
O’Neil: And then is there another—I mean, it may not be scheduled now, but what does the future look like for this case?
Rae: Sure. So, we don’t have anything else scheduled at this time. The first thing up is the preliminary injunction. We do have a trial setting hearing in February, so that’s the next thing on calendar. But everyone can go to libertyjusticecenter.org and you can sign up to receive updates about this case. And as we have more things on the calendar, get everything scheduled, we can let everyone know.
O’Neil: And how close are you with the superintendent, with the school board, with those who are behind this policy? And part of what I’ve heard is that these cases often are a form of lawfare where the process is the punishment, where Attorney General Rob Bonta, he has all the resources of the state. He can file this lawsuit. He can spend months and months and months in litigation. But he’s going up against a school district that is just defending its own policy. And how are they feeling amidst this? Are they dedicated to fighting?
I know there are other school districts in California that have adopted similar parental notification policies regardless of Bonta’s claims that they might also violate the law. This is the only district he’s suing, and it seems like you might be making an example of them. So how do your clients, how are they feeling and how dedicated are they to fighting this?
Rae: They’re 100% dedicated to fighting this, as am I with them. I mean, I talk to them regularly. Sonja Shaw, the school board president, and I are in constant communication. And I wouldn’t say that anyone was particularly surprised that the state is targeting them and engaging in this ridiculous nonsense. But we are going to continue to fight and everyone is staying strong here and doing what we have to do to protect kids.
O’Neil: Emily, yeah, on that issue where we have the school district facing off against all the resources of the state of California, how does the involvement of Liberty Justice Center relate to that? Have you stepped into the breach? Is this school district able to continue this litigation no matter how long it goes?
Rae: Sure. Well, Liberty Justice Center is a nonprofit public interest law firm. All of our cases are pro bono, which means that they’re 100% free to our clients. That includes attorney time, it includes out-of-pocket court costs, expert fees, all of that. Liberty Justice covers that through our generous private donors.
So one of the great things about using Liberty Justice Center or another nonprofit is the state can’t strong-arm school districts into settling because they just want to bring frivolous lawsuits and try and wait them out until they’ve run out of money. That’s not the case here. We’re going to fight this all the way and we’re able to do so. And it’s great partnering with Chino Valley.
O’Neil: And Liberty Justice Center has a record of holding the government accountable, specifically in a very important case called Janus v. AFSCME, a union case. Can you talk a little bit about that?
Rae: Sure. So, the Janus case, we’re about five years out from that. And basically, we took that all the way to Supreme Court, and the Supreme Court said that people don’t have to be in state unions.
Liberty Justice Center also did a case on the [Occupational Safety and Health Administration] mask mandates against the Biden administration, and we went on that as well. So we have a track record of taking on big fights, going all the way to the Supreme Court. And so we’re not afraid of Bonta and we’re not going to back down here.
O’Neil: Awesome. Well, where can our listeners learn more about Liberty Justice Center, your other cases, how can they follow you?
Rae: Sure. Libertyjusticecenter.org is our website. You can follow us on pretty much any social media platform. Just search for Liberty Justice Center. And if you want to follow me, I am constantly giving updates on the case and Liberty Justice Center, and it’s @emilyraetx on Twitter, or X, I should say.
O’Neil: Yes. The artist formerly known as.
Rae: Yeah, exactly.
O’Neil: Are there any other cases, real quick while I have you, that Liberty Justice Center is focused on that you would like to mention?
Rae: Well, Liberty Justice Center has a lot of active cases going on right now. We specialize in basically protecting constitutional rights. That includes individual liberties, property rights, economic rights, and fighting against government overreach.
So if you go to our website, we have all of our active cases listed, and those do have category tags. So if you’re specifically interested in education freedom, for example, you can go and see all the cases that we’re doing on education freedom. So we make it really easy to break it down that way.
O’Neil: Wonderful. Well, Emily, it’s been a great pleasure. Thanks so much for joining us. And is there anything else you’d like to say?
Rae: I would just say that this is a really important issue and we need to make sure that parents are still involved in their kids’ life and that parents are able to direct the upbringing of their children, as is their constitutional right. And that this issue isn’t just going to go away if we ignore it. People need to stand up, you need to fight back, and that’s what we’re doing here with this lawsuit.
O’Neil: Thanks again, Emily.
Rae: Thank you so much.
Have an opinion about this article? To sound off, please email [email protected], and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the URL or headline of the article plus your name and town and/or state.