(Just the News)—Nearly two years after a judge nominated by President George W. Bush affirmed a school district that hid a student’s gender transition from her mother, finding that Chico Unified has a “legitimate state interest” in assuming Aurora Regino would respond by abusing her daughter, a federal appeals court known for its liberal bent came to the mother’s rescue.
A three-judge panel of two Democratic and one Republican presidential nominees unanimously rebuked Mendez for “import[ing]” the legal standard for overcoming qualified immunity, which shields public officials from personal liability, into a “substantive due process” case.
Judge Morgan Christen’s opinion said the “critical inquiry is whether an asserted fundamental right is ‘objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty'” – quoting a Supreme Court precedent that upheld a ban on assisted suicide – and it “need not have been expressly recognized as fundamental in caselaw.”
The ruling is a big win for Regino’s lawyers at the Center for American Liberty, founded and led until recently by Republican super-lawyer Harmeet Dhillon, sworn in as Department of Justice Office for Civil Rights chief just this week.
Five of the opinion’s 32 pages are just lists of lawyers for the parties and groups that filed friend-of-the-court briefs, from competing coalitions of Democratic and Republican attorneys general to education unions, LGBTQ groups, conservatives and nationally known transgender clinical psychologist Erica Anderson, who supports parental involvement.
The Liberty Justice Center and Wisconsin Institute for Law and Liberty filed a joint brief with Anderson, who subsequently resigned as president of the U.S. Professional Association for Transgender Health after the group banned Anderson from talking to the press.
Anderson’s work was cited in another federal judge’s ruling earlier this year that green-lighted a lawsuit against a California school district and state officials for secret gender transitions.
LJC celebrated the ruling Tuesday, touting its Title IX complaint against Illinois school districts for elevating gender identity over sex that prompted an investigation by the Department of Education. Another northern California school district, Rocklin Unified, retained LJC to defend its parental notification policy against an administrative challenge by teachers unions.
The feds also recently launched probes of California for its law (AB 1955) banning disclosure of child gender transitions to parents and Maine for districts’ policies that create secret “gender plans” for students, both alleged to violate the Family Educational Rights and Privacy Act.
Parents Defending Education, which supports disclosure, recently documented 32 Rhode Island school districts hiding gender transitions from parents as well.
Maine mother Amber Lavigne is trying to use the federal investigation to draw attention to her lawsuit against Great Salt Bay Community School for socially transitioning her gender-confused 13-year-old, with a social worker even giving the girl a chest binder to flatten her breasts.
Lavigne’s lawyers at the Goldwater Institute told Just the News on Tuesday they are still waiting for a ruling from the 1st Circuit, which heard oral argument last fall, after losing in trial court.
Maine appears to be the biggest target so far of the second Trump administration’s funding purge for jurisdictions that elevate gender identity over sex.
President Trump warned Democratic Gov. Janet Mills in person that Maine would lose all of its federal funding if it didn’t comply with his executive orders and her political career would be over. A month later the Department of Health and Human Services found it violated Title IX by letting males play in women’s sports.
The Maine Morning Star published a “running list” of actions Tuesday, including the Department of Agriculture pausing funding for “certain administrative and technological functions in schools” but not school lunch programs, prompting a lawsuit Monday.
The Maine Department of Corrections said the Justice Department cut off several grant programs, with a boilerplate notice similar to other cut-off grant recipients, after Attorney General Pam Bondi credited the cuts to Maine housing a male in a women’s prison.
WMTW reported Bondi appears to be referring to Andrew Balcer, also listed as Andrea, who is serving a 40-year sentence for murder at the Maine Correctional Center’s Women’s Center. Bondi said the inmate killed his parents and dog.
Split the difference between two extreme positions
Regino, a single mother with two daughters in Chico Unified, argued that the district violated her “right to make medical decisions” and “important decisions in the lives of her children that go to the heart of parental decision-making,” as well as “her right to maintain familial integrity and association,” Judge Christen’s opinion says.
A school counselor “addressed issues of gender identity and sexuality” when visiting her 11-year-old daughter’s class and started meeting with the girl around December 2021. The girl told the counselor early the next year she “felt like a boy,” which prompted the counselor to ask if she’d like a preferred name and pronouns.
The counselor brought up “top surgery” and “breast binding” and talked the girl out of telling her mother, instead directing her to tell other family members first. The girl’s grandmother told Regino, who said she would “assist in her transition” if the girl wanted.
While the panel told Judge Mendez his qualified-immunity analysis put too great a burden on Regino, it sent the case back to him to answer lingering questions, given that “the parties have failed to consistently articulate the scope of their respective claims and defenses.”
“Regino loosely invoked general parental rights” in her initial complaint, modified them twice more in briefing, and then at oral argument suggested her fundamental rights are only implicated when the district requires affirmation of transgender identity, such as when a counselor tells employees how to address a student, Christen wrote.
Chico Unified Superintendent Kelly Staley has also appeared to play it loose with the district’s justifications for hiding gender transitions, first arguing “minor children have the same informational privacy interests in their gender identity as adults,” then appearing to flip-flop during oral argument on whether a child’s age is relevant to disclosing their asserted gender identity, the opinion says.
Much of it directs Judge Mendez how to proceed. “Thus far, both parties have advanced unqualified positions that are unsupported by precedent,” either that “parental rights are nearly unlimited” or “a child’s right to make decisions is nearly unrestricted.”