Supreme Court in Shadow Docket Case Rejects California's Policy on Informing Parents of Student's Gender Transition

On Monday evening, the U.S. Supreme Court in Mirabelli v. Bonta, (Sup. Ct., March 2, 2026), barred enforcement against objecting parents of a controversial California school policy that requires student consent before disclosing to parents a student's gender transitioning in school. A California federal district court had enjoined enforcement of the policy in a challenge by parents and teachers. The 9th Circuit Court of Appeals, however, stayed the district court's injunction, thus reinstating the policy. In a per curiam opinion, the Supreme Court ruled for the parents.  It vacated the 9th Circuit's stay as to parents who object to the policy, but left the stay in place as to teachers. Justices Thomas and Alito would have vacated the injunction as to teachers as well. Justices Jackson, Kagan and Sotomayor dissented.

The per curiam opinion says in part:

We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim.  California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” ...  The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs....

The same is true for the subclass of parents who object to those policies on due process grounds.  Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” ... The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health....

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, filed a concurring opinion, saying in part:

The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization..... But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects....

 ... [C]ontrary to the dissent’s charge, granting interim relief is not a sign of the Court’s “impatience” to reach the merits.... Instead, the grant reflects the Court’s judgment about the risk of irreparable harm to the parents.... 

Justice Kagan, joined by Justice Jackson, filed a dissenting opinion, saying in part:

Today’s decision shows, not for the first time, how our emergency docket can malfunction.  A case raising novel legal questions and arousing strong views comes to this Court via an application about whether to stay a district court’s injunction pending appeal. The ordinary appellate process has barely started; only a district court has ruled on the case’s merits. The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute.  It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse—a matter of weeks. And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation....

As to due process particularly... I have no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make..... On the other side of ledger, of course, a State has critical interests in the care and education of children.  But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line.  And that would entitle the parents, at the end of the day, to relief. 

The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ordinary processes....

Justice Sotomayor, without writing or joining an opinion, stated that she would have left the 9th Circuit's injunction in place both as to parents and teachers.

SCOTUSblog reports on the decision.

Lawsuit Challenges Recent Kansas Law on Sex Designation for Restrooms, Birth Certificates, Driver's Licenses

On Feb.18, the Kansas legislature overrode Governor Laura Kelly's veto of SB 244 which requires the use of biological sex at birth to define usage of rest rooms and locker rooms in public buildings, and the use of biological sex on birth certificates and driver's licenses. It calls for correction of previously issued birth certificates and reissuance of previously issued driver's licenses.

Last week, suit was filed in a Kansas state trial court challenging the constitutionality of SB 244 under various provision of the Kansas state Constitution. The complaint (full text) in Doe v. State of Kansas ex rel. Kobach, (KS Dist. Ct., filed 2/26/2026) alleges in part:

2. The Act targets transgender Kansans across multiple, unrelated domains of their lives. This sweeping law restricts transgender individuals from obtaining driver’s licenses reflecting their gender identity and bans transgender people from accessing restrooms or other single-sex spaces in a range of public places including libraries, courthouses, state parks, hospitals, and interstate rest stops.  SB 244’s restrictions extend beyond just government buildings, applying also to buildings owned by or leased from the government, even if they are controlled by private entities. By targeting transgender Kansans, the Act violates the Kansas Constitution’s guarantees of personal autonomy, privacy, equality under the law, due process, and free expression. It also violates the Kansas Constitution’s single-subject and clear title requirements.  

3. SB 244 is just the most recent law in a shameful litany of statutes enacted by the Kansas Legislature meant to discriminate against and dehumanize transgender people. 

ACLU issued a press release announcing the filing of the lawsuit.

EEOC Says Federal Agencies May Base Restroom Access on Biological Sex

 In a February 26 press release, the EEOC announced:

The U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 today to approve a federal sector appellate decision adjudicating an appeal regarding access to intimate spaces, including bathrooms and locker rooms, in federal workplaces under Title VII of the Civil Rights Act of 1964, as amended....

 “Today’s opinion is consistent with the plain meaning of ‘sex’ as understood by Congress at the time Title VII was enacted, as well as longstanding civil rights principles: that similarly situated employees must be treated equally,” said EEOC Chair Andrea Lucas. “When it comes to bathrooms, male and female employees are not similarly situated. Biology is not bigotry.”

When adjudicating appeals of alleged employment discrimination in the federal sector, the EEOC applies longstanding precedent, including relevant Supreme Court decisions, to the facts of the case. In this case, however, such precedent does not exist, as federal courts have not determined whether Title VII requires employers to permit trans-identifying employees to access bathrooms and other intimate spaces otherwise reserved for the opposite sex. In the absence of authoritative court precedent, the EEOC used the traditional tools of statutory construction, turning first to the ordinary meaning of the statute’s text and ensuring that the decision is further anchored by the Supreme Court’s precedents in comparable areas of law.

In applying the traditional tools of statutory construction, the EEOC found that Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces; and permits a federal agency employer to exclude employees, including trans-identifying employees, from opposite sex-facilities. Today’s opinion overturns a prior EEOC federal sector appellate decision (Lusardi v. Department of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (2015)) with respect to the portion of that opinion addressing a federal employee’s access to an opposite-sex bathroom based on “gender identity.”

As with all of the EEOC’s appellate decisions adjudicating federal agency employment discrimination complaints, this decision applies only to federal agencies subject to the EEOC’s administrative complaint process for federal employees. It does not apply to private sector employers, nor does it bind any federal court.

The Agency's action approved a 23-page Federal Sector Appellate Decision, Selina S. v. Driscoll, (EEOC Federal Sector Appeal, Feb. 26, 2026), a case brought by a civilian employee of the Army.

9th Circuit: Anti-Transgender Comments Justify Mayor's Veto of Membership on Police Advisory Board

In Hodges v. Gloria, (9th Cir., Feb. 26, 2026), the U.S. 9th Circuit Court of Appeals rejected free speech and free exercise challenges to the San Diego mayor's veto of the reappointment of a voluntary member of the city's Police Advisory Board.  The mayor vetoed the reappointment of Dennis Hodges, a correctional officer and pastor, because of Hodges' public comments that he considered “transgenderism” to be a sin just like adultery and fornication. The court said in part:

Hodges asserts that he was not a policymaker and that government officials may not create religious tests for holding public office.  However, a consistent line of cases ... hold that an appointed volunteer may be dismissed for statements that might otherwise be protected by the First Amendment when “commonality of political purpose” is an appropriate requirement for the volunteer’s services....

Hodges has not shown that the district court erred in rejecting his free exercise claim.  To prevail on this claim, Hodges would have to show that even though the veto of his reappointment did not violate his free speech rights, it violated his free exercise rights because of his underlying religious beliefs.  He offers no case law supporting such a proposition.  Moreover, he does not explain how his religious motive for making public statements changes the court’s evaluation of his claim....

DOJ Opens Title IX Investigations of 3 Michigan School Districts

The Department of Justice announced yesterday that it has opened Title IX investigations into three Michigan school districts. The announcement said in part:

Today, the Justice Department’s Civil Rights Division launched investigations into three Michigan public school districts: the Detroit Public Schools Community District, Godfrey-Lee Public Schools, and the Lansing School District ... to determine whether they have included sexual orientation and gender ideology (SOGI) content in any class for grades pre-K-12. If they are teaching SOGI-related content, the investigations will examine whether the schools have notified parents of their right to opt their children out of such instruction. The investigation will also assess whether the Michigan School Districts limit access to single-sex intimate spaces, such as bathrooms and locker rooms, based on biological sex....

4th Circuit: School Gender Identity Guidelines Do Not Violate Teacher's 1st Amendment Rights

 In Polk v. Montgomery County Public Schools, (4th Cir., Jan. 28, 2026), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, affirmed a Maryland federal district court's denial of a preliminary injunction sought by a substitute teacher who objected on free speech and free exercise grounds to the school district's Guidelines for Student Gender Identity. The court rejected plaintiff's free exercise claim, concluding that the Guidelines are neutral and generally applicable and that they satisfy the rational basis standard. The majority said in part:

... Polk believes that gender is rigid, based on her understanding of Christianity.  And referring to her students by a gender that is not consistent with the student’s gender assigned at birth places a requirement on Polk, that she says is at odds with her faith....

Distilled to its core, the thrust of Polk’s appellate position is that, because persons who hold religious views are those most impacted by the Guidelines, they cannot be deemed “neutral.” But that logic turns the well-established neutrality analysis on its head.  As the court explained, the Complaint “alleges no facts from which the Court could infer religious animus.” ...  That a certain religious practice is incidentally burdened by the Guidelines is not sufficient. Rather, the Guidelines must be motivated by religious hostility....

The majority also rejected plaintiff's free speech claim, saying in part:

 ... [W]e agree with the district court that the Guidelines’s mandate does not concern the speech of a private citizen, but establishes the official duties of a public-school teacher.  More pointedly, how a teacher addresses a particular student in a particular classroom — and whether a teacher communicates with a student’s parent — is merely a part of that teacher’s job description....

 ... And “[w]hen an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer.  The employee is effectively the employer’s spokesperson.” ...

Judge Wilkinson dissented, contending that the Guidelines violated plaintiff's free speech rights.  He said in part:

In holding instead that the Free Speech Clause does not provide even qualified protection to Ms. Polk’s speech, the majority leaves teachers completely vulnerable to becoming the unwilling mouthpieces of government messaging. Although transgender rights advocates may now cheer the majority opinion, they will find today’s cure in truth a poison when states enact legally indistinguishable policies preventing teachers from using preferred pronouns in schools. And because nothing prevents school systems from pushing this newfound control much further than mere pronoun usage, I respectfully dissent....

This case is, without question, about compelled speech—a detail to which the majority gives short shrift....

... My qualm with the majority is simply that we cannot categorically write all in-class speech out of the First Amendment. Garcetti has its place, but chiefly with regard to core curricular functions. Speech at the noncurricular margins of a teacher’s job should remain subject to the same standards that we have always applied. This is no jurisprudential revolution....

 Ms. Polk’s case is one of many plaguing our nation’s educational system. Across all levels of education—elementary to college—LGBT rights, DEI, antisemitism, systemic racism, and innumerable other issues have made our schools hotbeds of vehement sociopolitical debate. Silencing voices and compelling affirmations to government preferred messaging do nothing to temper the vitriol; on the contrary, such actions foster further hostility....

Parents Seek Emergency Order from SCOTUS Reinstating Trial Court's Voiding of School Policy on Disclosure of Students' Gender Transition

As previously reported, last December in Mirabelli v. Bonta, a California federal district court held unconstitutional the policy of California school boards that bars public school teachers and staff from informing parents about changes in a child’s gender expression unless the child consents. On January 5, the U.S. 9th Circuit Court of Appeals granted a stay pending appeal of the district court's injunction. Now plaintiffs in the case have filed an Emergency Application with the U.S. Supreme Court asking it to vacate the 9th Circuit's stay. (Mirabelli v. Bonta, (Sup.Ct., filed 1/8/2026). (Full text of 9th Circuit's stay order and Application to Supreme Court).

Education Week reports on these developments.

Supreme Court Will Hear Oral Arguments Tomorrow In Transgender Athlete Cases

Tomorrow (Tuesday), the U.S. Supreme Court will hear oral arguments in two cases involving alleged illegal discrimination against transgender women athletes. At issue in Little v. Hecox is whether Idaho's Fairness in Women's Sports Act violates the Equal Protection Clause. The Act prohibits transgender women and girls from participating on women's sports teams in public elementary schools, high schools and public colleges. The U.S. 9th Circuit Court of Appeals upheld a preliminary injunction that barred enforcement of Idaho's ban. The SCOTUSblog case page has links to all the pleadings and briefs, as well as to commentary on the case.

In West Virginia v. B.P.J., the question is whether West Virginia's Save Women's Sports Act violates Title IX and the Equal Protection Clause. The U.S. 4th Circuit Court of Appeals held that it does.  The law bans transgender girls and women from participating on girls'/ women's sports teams in public high schools or state colleges where team members are chosen on the basis of competitive skills or in contact sports. The SCOTUSblog case page has links to all the pleadings and briefs, as well as to commentary on the case.

Audio of the oral arguments in the cases will be streamed live by the Court beginning at 10:00 AM at this link. Transcript and recording of the oral arguments will become available later in the day at this link.

California Policy Barring School's Disclosure of Student's Change in Gender Expression Is Unconstitutional

In Mirabelli v. Olson, (SD CA, Dec. 22, 2025), a California federal district court held unconstitutional the policy of California school boards that bars public school teachers and staff from informing parents about changes in a child’s gender expression unless the child consents. The court concluded:

[The policies] harm the parents by depriving them of the long-recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children, and by substantially burdening many parents’ First Amendment right to train their children in their sincerely held religious beliefs.  And finally, they harm teachers who are compelled to violate the sincerely held beliefs and the parent’s rights by forcing them to conceal information they feel is critical for the welfare of their students.

Justifying its conclusion, the court said: 

The constitutional question is about when gender incongruence is observed, whether parents have a right to be informed and make the decision about whether further professional investigation or therapy is needed.  Put another way, the question is whether being involved in potentially serious medical or psychological decision-making for their school student is a parent’s constitutional right. It is. "Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state...."

The State Defendants argue... that a parent “does not possess a religious exercise right to dictate that a school reject their child’s gender identity.”...  Nevertheless, this Court disagrees....

Defendants concede that parents “may find notification that their child is expressing a transgender identity at school helpful in the general exercise of their right to direct a religious upbringing for that child.” ... So, the State Defendants are aware that notification would be helpful to religious parents, but provide no room for those parents to exercise those federal constitutional rights.... [T]he California state education parental exclusion policies provide no exceptions for religious parents....

The four teacher Plaintiffs and class representatives sincerely hold religious beliefs that that are being severely burdened by the imposition of the parental exclusion policies....

The teachers successfully make out a First Amendment freedom of speech claim when they are compelled to speak in violation of the law or to deliberately convey an illegal message....

Daily Wire reports on the decision.

HHS Proposes Rules to Bar Hospitals from Performing Gender Affirming Care to Minors

The Department of Health and Human Services today published in the Federal Register two Releases proposing rule changes that would effectively ban almost all U.S. hospitals from providing pharmaceutical or surgical gender-affirming care to children and adolescents under 18 years of age. One Release is titled Prohibition on Federal Medicaid and Children’s Health Insurance Program Funding for Sex-Rejecting Procedures Furnished to Children. The second Release is titled Medicare and Medicaid Programs; Hospital Condition of Participation: Prohibiting Sex-Rejecting Procedures for Children. Health and Human Services Secretary Robert F. Kennedy, Jr. announced the Proposed Rules yesterday in a Press Release and in a "Declaration" titled Safety, Effectiveness, and Professional Standards of Care for Sex Rejecting Procedures on Children and Adolescents.  According to the Press Release:

The U.S. Department of Health and Human Services (HHS) today announced a series of proposed regulatory actions to carry out President Trump’s Executive Order directing HHS to end the practice of sex-rejecting procedures on children that expose young people to irreversible harm. These procedures include pharmaceutical or surgical interventions of specified types that attempt to align a child’s physical appearance or body with an asserted identity different from their sex.

The Centers for Medicare & Medicaid Services (CMS) will release a notice of proposed rulemaking to bar hospitals from performing sex-rejecting procedures on children under age 18 as a condition of participation in Medicare and Medicaid programs. Nearly all U.S. hospitals participate in Medicare and Medicaid and this action is designed to ensure that the U.S. government will not be in business with organizations that intentionally or unintentionally inflict permanent harm on children....

CMS will release an additional notice of proposed rulemaking to prohibit federal Medicaid funding for sex-rejecting procedures on children under age 18. The same prohibition would apply to federal Children’s Health Insurance Program (CHIP) funding for these procedures on individuals under age 19. Currently, 27 states do not provide Medicaid coverage of sex-rejecting procedures on children....

DOJ Seeks to Intervene in Suit Over Christian Males' Reaction to Transgender Use of Boy's Locker Room

The Justice Department this week filed a Motion to Intervene and a Memorandum In Support of its motion in S.W. v. Loudoun County School Board, (ED VA, filed 12/8/2025). DOJ alleges that a Loudoun County high school discriminated against two male Christian students in disciplining them for their reaction to the presence of a transgender male in the boy's locker room.

In an Announcement of its action, DOJ said in part:

Policy 8040 requires all students, regardless of their religious beliefs, to adopt the Loudoun County School Board’s understanding of “gender identity” — including its practical application that affects all students’ use of intimate spaces, such as bathrooms and changing facilities. At Stone Bridge High School, a female student took advantage of this policy, entered the boys’ locker room, and recorded audio and video of the boys in that locker room. Several boys spoke out about this incident, including two Christian, male students whose religious beliefs require them to use biologically accurate pronouns and use sex-segregated facilities.

Loudoun County determined that these Christian, male students’ religious practice violated school policy, recasting constitutionally protected activity as “sex-based discrimination” and “sexual harassment.” ...

(See prior related posting.) Northern Virginia reports on DOJ's action.

HHS Replaces Label on Portrait of Former Official to Reflect Administration's Refusal to Recognize Changes in Gender Identity

NPR reports that the U.S. Public Health Service has altered the official portrait of Admiral Rachel Levine who served for four years as deputy assistant secretary for health policy in the Biden administration. Her portrait is one in the photo display of individuals who have led the Public Health Corps at the Department of Health and Human Services. Levine was the first transgender person to serve in a position that required Senate confirmation. According to NPR, during the recent federal government shut down, the Office of the Assistant Secretary for Health removed Levine's legal name (under which she served in office) from her portrait and substituted her prior name. In response to an NPR inquiry, HHS spokesperson Andrew Nixon wrote:

Our priority is ensuring that the information presented internally and externally by HHS reflects gold standard science. We remain committed to reversing harmful policies enacted by Levine and ensuring that biological reality guides our approach to public health.

As previously reported, President Trump on his first day in office issued an Executive Order providing in part:

It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality....

Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages....

[Thanks to Scott Mange for the lead.] 

[CORRECTION: A prior version of this post inaccurately referred to an archived version of the HHS website as its current version.]

Church Autonomy Doctrine Requires Dismissal of Catholic School Employee's Discrimination Claim

In MoChridhe v. Academy of Holy Angels, (MN App. Dec. 1, 2025), a Minnesota state appellate court rejected an employment discrimination claim by a former media specialist/librarian at a Catholic school. The school refused to renew her contract when she disclosed that she was undergoing gender transition to present as a female. The school based its decision on MoChridhe's refusal to abide by the "Guiding Principles for Catholic Schools and Religious Education Concerning Human Sexuality and Sexual Identity." The court said in part:

Does the First Amendment protect a religious employer from discrimination claims by a terminated non-minister employee if the termination was based on a religious reason?  Given the facts alleged in MoChridhe’s complaint and the absence of any binding precedent suggesting otherwise, we discern no basis to conclude that the broader religious protections of the First Amendment church autonomy doctrine are not available to the religious employer in that situation....

... [C]onsideration of MoChridhe’s claims would require consideration of the Archdiocese’s religious reason for the employment decision, would interfere with the Archdiocese’s internal decision to require compliance with the Guiding Principles in the school setting—which relates to the church’s mission to educate young people in its faith— and would foster excessive governmental entanglement with religion.  The potential inapplicability of the ministerial exception does not change that conclusion, and there is no precedent indicating that it must...

State Department Human Rights Reports Will Have Changed Focus

Yesterday the State Department announced a change in focus for future Country Reports on Human Rights Practices. The Daily Signal and the Washington Post report on new instructions and guidelines provided to U.S. embassies and consulates as they begin to prepare reports for their nations. As reported by The Daily Signal, the following will now be treated as human rights violations by foreign countries:

Sex-change procedures for minors, such as hormone replacement regimens or irreversible transgender surgeries.

Government funded abortions or abortifacient drugs, as well as the total estimated number of annual abortions.

Arrests, administrative penalties, and “official investigations or warnings” for speech or “hate speech.”

The enforcement of policies like affirmative action or diversity, equity, and inclusion that “provide preferential treatment” to workers on the basis of race, sex, or caste.

The facilitation of mass or illegal migration across a country’s territory into other countries.

Attempts to coerce individuals into engaging in euthanasia.

Violations of religious freedom, including antisemitic violence and harassment.

Medical abuses, including forced testing, forced organ harvesting, and eugenic gene-editing practices on human embryos.

According to the Washington Post:

In unveiling the dramatic shift, Trump administration officials offered an unapologetically U.S.-centric and religiously tinged view of human rights. “The United States remains committed to the Declaration of Independence’s recognition that all men are endowed by the Creator with certain unalienable rights,” said a senior State Department official also involved with briefing the news media. The aim is to focus on rights “given to us by God, our creator, not by governments.”

9th Circuit Remands Discrimination Suit Against Third-Party Health Plan Administrator

In Pritchard v. Blue Cross Blue Shield of Illinois, (9th Cir., Nov. 17, 2025), the U.S. 9th Circuit Court of Appeals remanded to the district court a suit contending that Blue Cross, when acting a third-party administrator for a health care plan of a religious organization, is liable under the anti-discrimination provisions of the Affordable Care Act for enforcing the employer's  religious-based exclusion of coverage for gender dysphoria. The court held that ERISA does not require plan administrators to administer terms of the plan that are illegal. It also held that Blue Cross cannot not invoke RFRA as a defense because neither its religious exercise, nor that of its employees, officers or shareholders are impacted by its paying for treatment for gender dysphoria. Also, it held that RFRA does not apply to suits in which the government is not a party. However, the court remanded the case so that the district court could reconsider whether the policy exclusions discriminate on the basis of sex in light of the Supreme Court's recent decision in United States v. Skrmetti.

Judge Rawlinson filed a concurring opinion saying in part:

... I part company with the majority’s analysis that goes beyond a discussion of the Supreme Court’s holding in Skrmetti and a remand for the district court to apply Skrmetti in the first instance.

Out Smart reports on the decision.

Certiorari Filed in Exclusion of Catholic Schools from Colorado's Preschool Program

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in St. Mary Catholic Parish in Littleton v. Roy, (Sup. Ct. filed 11/13/2025). In the case, the U.S. 10th Circuit Court of Appeals held that the nondiscrimination requirements of Colorado's Universal Preschool Program do not violate the free exercise or expressive association rights of Catholic schools that are excluded from the program because they insist on considering the sexual orientation and gender identity of a student and their parents in making decisions on who will be admitted. (See prior posting.) According to the petition for review:

The decision below exacerbates a 7-4 split [among Circuits] over the test for determining whether a law is generally applicable under the Free Exercise Clause.

Becket issued a press release announcing the filing of the petition for Supreme Court review.

New Executive Order on Foster Care System Includes Focus on Religious Concerns

President Trump yesterday issued an Executive Order titled "Fostering the Future for American Children" (full text). The Executive Order is designed to modernize the foster care system and support those transitioning out of the system. The Executive Order. reads in part: 

Sec. 1 ...Some jurisdictions and organizations maintain policies that discourage or prohibit qualified families from serving children in need as foster and adoptive parents because of their sincerely-held religious beliefs or adherence to basic biological truths....

 Sec. 4.  Maximizing Partnerships with Americans of Faith. The Secretary of Health and Human Services, in coordination with the Director of the White House Faith Office and the Director of the White House Office of Intergovernmental Affairs, shall:

     (a)  take appropriate action to address State and local policies and practices that inappropriately prohibit participation in federally-funded child-welfare programs by qualified individuals or organizations based upon their sincerely-held religious beliefs or moral convictions; and

     (b)  take appropriate action to increase partnerships between agencies and faith-based organizations and houses of worship to serve families whose children have been placed in foster care or are at risk of being placed in foster care.

Scripps News reports on the Executive Order.

6th Circuit En Banc: Banning Student-on-Student Use of Biological Pronouns Violates Free Speech Rights

In Defending Education v. Olentangy Local School District Board of Education, (6th Cir., Nov. 6, 2025), the U.S. 6th Circuit Court of Appeals in a 10-7 en banc decision held that the free speech rights of public-school students are infringed when the school prohibits them from calling fellow-students who are transgender by their biological pronouns rather than the pronouns preferred by their fellow students.  A 3-judge panel of the 6th Circuit had reached an opposite conclusion. (See prior posting.) Plaintiff students and parents hold religious beliefs that gender is immutable. Opinions in the en banc case span 112 pages. The en banc court's majority opinion said in part:

A school district may not restrict personal speech on matters of public concern unless the speech would “materially and substantially disrupt” school activities or infringe the legal “rights of others” in the school community.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).  In this case’s current posture, the school district has fallen far short of meeting this demanding standard.  It introduced no evidence that the use of biological pronouns would disrupt school functions or qualify as harassment under Ohio law....

 ... [T]he School District has regulated personal expression—the use of biological pronouns to convey a student’s scientific and religious beliefs—that addresses a “sensitive topic of public concern.” ... As part of the broader debate over transgender rights, the question whether speakers should use preferred pronouns to refer to transgender individuals—and whether we should treat the commonplace (and non-antagonistic) use of biological pronouns as proper or offensive—has stirred a “passionate political and social debate” in our society....

... [T] the School District has not just entered this policy debate.  It has taken a side.  The School District has “targeted” a speaker’s use of biological pronouns as improper while allowing students to use preferred pronouns (no matter how novel)....

... The School District is right that schools may bar abusive “invective” that targets “specific” students—whether transgender students, religious students, female students, Hispanic students, or any others.... That is, a school could bar a student from abusively ridiculing a transgender classmate’s “physical characteristics” in the same way it could bar a student from abusively ridiculing a smaller student’s physical characteristics.... But the School District is wrong to treat the use of biological pronouns alone as analogous to this abusive invective.  Defending Education’s members want to use biological pronouns not because they seek to ridicule others but because they want to speak what they view as the truth.... 

Ohio law defines “harassment, intimidation, or bullying” to cover speech directed at another student only if the speech both “[c]auses mental or physical harm to the other student,” and “[i]s sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.”  Ohio Rev. Code § 3313.666(A)(2)(a).  And the School District has offered no evidence that the commonplace use of biological pronouns would create an intimidating, threating, or abusive environment....

Judge Batchelder filed a concurring opinion, saying in part:

... [E]ven if the School District were to produce overwhelming evidence of disruption, that evidence would still not justify the compelled-speech or viewpoint-discrimination aspects of its preferred-pronoun policies.

Judge Kethledge filed a concurring opinion, saying in part:

 ... [T]o determine whether the plaintiffs here should prevail on their First Amendment claim, we should begin with the right question:  namely, whether the historic common law would have subjected a student to punishment (as a matter of public law or private) for referring to a classmate with biological pronouns that the classmate had insisted the student not use.  Considering the speech alone, the answer is likely no.  For one thing, as noted above, offense or dignitary harm was not cognizable at law....  And the right to express one’s opinions in good faith would almost certainly protect the speech at issue here....

A final point is hortatory rather than legal.  That the law permits certain action does not mean that an individual should necessarily engage in it....

Judges Thapar and Nalbandian filed a concurring opinion, saying in part:  

In the end, the School District’s policy “mandates orthodoxy, not anti-discrimination,” and fails to recognize that “[t]olerance is a two-way street.”...  The District chose a side in a hotly contested debate and tried to squelch the opposing viewpoint by imposing an ideological speech code.  When it did so, it unlawfully discriminated based on viewpoint.  And while we appreciate the majority’s thoughtful Tinker approach, we worry that students’ rights to speak freely on important matters of public interest should not hang in the balance while district courts perform ad hoc inquiries into how “disrupt[ive]” they find the students’ viewpoint....

Judge Bush filed a concurring opinion, saying in part:

Rather than employ the traditional monsieur (for a man) and madame or mademoiselle (for women) or use longstanding aristocratic titles..., the French revolutionaries replaced those words with the masculine citoyen or feminine citoyenne (both translated as “citizen”) to refer to all men and women, respectively, regardless of station....  

Like the French revolutionaries, communists also sought to revolutionize forms of address for political ends.  Communist regimes strongly encouraged and sometimes mandated use of “comrade” instead of traditionally employed honorifics to refer to another person, just as the French revolutionaries insisted on the use of “citizen.”  That was not surprising.  “[T]he history of authoritarian government . . . shows how relentless authoritarian regimes are in their attempts to stifle free speech . . . .” ...

Governments in the United States—federal or state—never operated that way.  Our Constitution forbids mandatory use of certain titles to refer to others....

American history and tradition uphold the majority’s decision to strike down the school’s pronoun policy.  Over hundreds of years, grammar has developed in America without governmental interference.  Consistent with our historical tradition and our cherished First Amendment, the pronoun debate must be won through individual persuasion, not government coercion.  Our system forbids public schools from becoming “enclaves of totalitarianism.”

Judge Stranch joined by Judges Moore, Clay, Davis, Mathis, Bloomekatz and Ritz, filed a dissenting opinion, saying in part:

In this case, the School District has repeatedly affirmed that the children of Defending Education members will have the right to express beliefs about transgender identities.  Those children will be permitted to express the view that sex is immutable.  But it is not viewpoint discrimination to require those students to share those beliefs in a manner that does not disrupt the education of others....

The District made clear in its Policies that the purpose of the ban on intentional use of non-preferred pronouns is to prevent disruption in the form of trauma to transgender or nonbinary students of a degree likely to hamper those students’ ability to learn.  Evidence of that purpose was before the district court.....

Though the record satisfied Tinker’s requirement that the School District’s forecast be reasonable, the majority opinion concluded otherwise, positing and applying a new approach:  that “the closer the speech resembles political expression at the First Amendment’s core, the more evidence a school must present of the potential disruption or violation of rights.”...

... Existing precedent provides educators—those most attuned to the issues in their schools—with a reasonable level of agency to develop productive, civilized educational settings while protecting both student rights and student safety.

Columbus Dispatch reports on the decision.

Supreme Court: Trump Administration Rules on Passport Gender Markers Can Go into Effect While Appeals Move Forward

In Trump v. Orr, (Sup. Ct., Nov. 6, 2025), the U.S. Supreme Court by a 6-3 vote granted an emergency stay of a preliminary injunction that had been entered by a Massachusetts federal district court.  The district court had enjoined, pending appeal, enforcement of the Trump Administration's policy of requiring U.S. passports to display the sex assigned to the passport holder at birth rather than the sex marker that matches their current gender identity. The challenged policy was put in place in compliance with a 2025 Executive Order on ... "Restoring Biological Truth to the Federal Government."   In staying the injunction, the Supreme Court's majority said in part:

Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government’s choice to display biological sex “lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.”

Justice Jackson, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President’s chosen policy is implemented now....

 ... [The government] provides no evidence of harmful confusion or other problems caused by transgender Americans who are using passports with sex markers corresponding to their current gender identity.  To the contrary, as the plaintiffs’ experiences demonstrate, it is gender-incongruent passports that cause confusion and fail to provide a meaningful basis for identification.

 As for the Government’s suggestion that the President is harmed by not being able to impose a uniform definition of sex across various regulatory schemes, that assertion is just another species of the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes....

Politico reports on the decision.

Supreme Court Denies Review of School Policy on Hiding Students' Gender Dysphoria from Parents

The U.S. Supreme Court yesterday denied certiorari in Lee v. Poudre School District R-1, (Docket No. 25-89, certiorari denied (10/14/2025) (Order List). In the case, parents of two 6th graders sued a Colorado school district for damages after their children were invited by teachers to a Gender and Sexuality Alliance meeting. After the meeting, one of the students decided that she was transgender and the other started to suffer from suicidal ideations. The parents claimed that the school's policy of discouraging disclosure to parents of a child's transgender status violates parents' substantive due process rights. The U.S. 10th Circuit Court of Appeals dismissed the suit because plaintiffs had not alleged the existence of a school policy that was the moving force behind their constitutional injury. Parents' petition for Supreme Court review framed the question presented as:

Whether a school district may discard the presumption that fit parents act in the best interests of their children and arrogate to itself the right to direct the care, custody, and control of their children

In denying certiorari, Justice Alito, joined by Justices Thomas and Gorsuch, filed a concurring Statement, saying in part:

I concur in the denial of certiorari because petitioners do not challenge the ground for the ruling below.  But I remain concerned that some federal courts are “tempt[ed]” to avoid confronting a “particularly contentious constitutional questio[n]”: whether a school district violates parents’ fundamental rights “when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.”... Petitioners tell us that nearly 6,000 public schools have policies—as respondent allegedly does—that purposefully interfere with parents’ access to critical information about their children’s gender identity choices and school personnel’s involvement in and influence on those choices.... The troubling—and tragic—allegations in this case underscore the “great and growing national importance” of the question that these parent petitioners present....

CBS News reports on the Court's action