Ohio Governor Vetoes Ban on Gender Affirming Treatments for Minors and Women's Sports Provisions: Proposes Administrative Alternatives

 Ohio Governor Mike DeWine today vetoed HB 68 which prohibited physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors, and prohibited transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (Full text of Governor's Veto Message, his prepared Statement at a News Conference, and a video of his lengthy News Conference on the veto.) Focusing only on the ban on treatment of minors, the Governor said in part:

Were I to sign Substitute House Bill 68 or were Substitute House Bill 68 to become law, Ohio would be saying that the State, that the government, knows what is best medically for a child rather than the two people who love that child the most, the parents...

I have listened to the concerns the Legislature ... and agree that action is necessary regarding a number of issues raised.

I believe we can address a number of goals in Substitute House Bill 68 by administrative rules that will have a better chance of surviving judicial review and being adopted....

I adamantly agree with the General Assembly that no surgery of this kind should ever be performed on those under the age of 18. I am directing our agencies to draft rules to ban this practice in Ohio.

I share with the legislature their concerns that there is no comprehensive data regarding persons who receive this care, nor independent analysis of any such data. I am today directing our agencies to immediately draft rules to require reporting to the relevant agencies and to report this data to the General Assembly and the public every six months. We will do this not only when patients are minors, but also when the patients are adults.

I also share with the legislature’s concerns about clinics that may pop up and try to sell patients inadequate or even ideological treatments. This is a concern shared by people I spoke with who had both positive experiences and negative experiences with their own treatments....

Therefore, I am directing our agencies to draft rules that establish restrictions that prevent pop-up clinics or fly-by-night operations and provide important protections for Ohio children and their families and for adults.

Court Finds Idaho's Ban on Gender Affirming Care for Minors Unconstitutional

In Poe v. Labrador, (D ID, Dec. 26, 2023), an Idaho federal district court issued a preliminary injunction barring enforcement of Idaho's recently enacted Vulnerable Child Protection Act which prohibits medical providers from surgically or chemically treating gender dysphoria in minors. The court held that because the statute discriminates on the basis of sex and transgender status, it is subject to heightened scrutiny under the equal protection clause, and found that the statute likely fails that test, saying in part:

Generally, the State Defendants say the legislature’s purpose in passing HB 71 was to protect vulnerable children from the dangers of unproven medical and surgical treatments. At a general level, safeguarding the physical wellbeing of children is of course important.... But in this case, the Court finds that the asserted objective is pretextual, given that HB 71 allows the same treatments for cisgender minors that are deemed unsafe and thus banned for transgender minors. That is, the medications and procedures that are used in gender-affirming medical care (such as puberty blockers, hormones, and surgeries) are used to treat cisgender adolescents for other purposes. But rather than targeting the treatments themselves, HB 71 allows children to have these treatments—but only so long as they are used for any reason other than as gender-affirming medical care....

The court also found the likelihood of success on plaintiffs' due process claims, saying in part:

[T]his Court easily concludes that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.

The court however did dismiss plaintiffs' unusual claim against the publisher of Idaho's annotated statutes. Plaintiffs had argued that by failing to include annotations to federal cases that would indicate that Idaho's statute is unconstitutional, the publishers violated plaintiffs' due process rights.

Los Angeles Blade reports on the decision.

Parents Sue School for Using Teen's Preferred Masculine Name and Pronouns

Suit was filed yesterday in a Michigan federal district court by parents of a 13-year-old biologically female child whose school concealed from the parents that the school was referring to the child by masculine name and male pronouns. The complaint (full text) in Mead v. Rockford Public School District, (WD MI, filed 12/18/2023), alleges in part:

7. These actions ... violated the Meads’ long-settled constitutional rights. The First Amendment protects their right to exercise their religion by directing G.M.’s education and upbringing, including on fundamental questions of existence like how G.M. identifies herself. And the Fourteenth Amendment guarantees their fundamental right to make decisions about her upbringing, education, and healthcare. 

8. By intentionally concealing from the Meads important information about their daughter’s education and health—on a subject as morally fraught as gender confusion—the District denied them these constitutional rights. Absent extraordinary circumstances, a school district’s concealment from parents of such information violates the Constitution.

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

2nd Circuit En Banc: Athletes Have Standing To Sue Under Title IX Over Transgender Girls on Girls' Teams

In Soule v. Connecticut Association of Schools, Inc., (2d Cir., Dec. 15, 2023), the U.S. 2nd Circuit Court of Appeals sitting en banc held that four cisgender female track and field athletes (plus two intervenors) have standing to sue a Connecticut high school athletic conference under Title IX for allowing transgender girls to compete in girls' track and field meets. Plaintiffs claimed that this deprived them of equal athletic opportunity. the court summarized its holding as follows:

We do not consider whether Plaintiffs’ Title IX claims have any merit or whether they would be entitled to the relief that they seek as a matter of equity, but rather whether the district court has jurisdiction to hear their claims in the first instance. We conclude that it does.... Plaintiffs have established Article III standing at this stage in the litigation. They have pled a concrete, particularized, and actual injury in fact that is plausibly redressable by monetary damages and an injunction ordering Defendants to alter certain athletic records. Second, the district court was not required to determine whether Defendants had adequate notice of a Title IX violation to be liable for monetary damages before reaching the merits of Plaintiffs’ Title IX claims.

This majority arose from splintered views expressed in 8 separate opinions concurring in part and dissenting in part from each other and spanning 142 pages. NBC News reports on the decision.

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.  The majority said in part:

[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the “natural and unalienable rights of mankind,” ... and that “overt acts against peace and good order,”  correctly defines the limiting principle for this right and establishes the duty of government to accommodate religious liberties that do not transgress these limits.

The majority also held that plaintiff had adequately stated a claim under the Virginia Religious Freedom Restoration Act as well as a claim for violation of the free speech and due process provisions of the Virginia Constitution. The majority said in part:

Because the gravamen of Vlaming’s free-speech claims involves an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims....

At the time that the School Board fired Vlaming, no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students. If the government truly means to compel speech, the compulsion must be clear and direct.

Finally the majority concluded that plaintiff adequately alleged that the School Board had breached his contract.

Justice Powell, joined by Chief Justice Goodwyn concurred in part, saying in part:

I write separately to clarify that, in my opinion, the proper test to evaluate a free exercise claim under Article I, Section 16 of the Virginia Constitution is traditional strict scrutiny as expressed in Sherbert v. Verner.... I disagree with the majority’s conclusion “that ‘overt acts against peace and good order,’ ... correctly defines the limiting principle for this right [in Article I, Section 16] and establishes the duty of the government to accommodate religious liberties that do not transgress these limits.”

Justice Mann filed a 64-page opinion dissenting in part. He said in part:

I dissent from the majority’s analysis and interpretation of Article I, Section 16.... The majority’s proposed limiting principle for the free exercise provision ... is not supported by the plain words of our Constitution, its history, our legal precedent, or legislative action of the General Assembly. I also dissent with respect to the majority’s rulings on Vlaming’s free speech and due process claims. Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.,,, 

Where a claimant alleges that the government was hostile towards his religious free exercise or that the government did not neutrally apply the law, the reviewing court should apply strict scrutiny to determine whether the government’s enforcement was narrowly tailored to achieve a compelling state interest....

As for Vlaming’s free speech and due process claims, the facts speak for themselves. Under well-established federal precedent, Vlaming’s allegations as pleaded establish that Vlaming was (1) a public employee engaged in curricular speech pursuant to his official job duties, (2) not speaking as a private citizen on a matter of public concern; and (3) had ample notice that his refusal to use Doe’s preferred pronouns was a violation of the School Board’s policies, and the School Board provided him an opportunity to be heard on his discipline.... 

Justice Powell and Chief Justice Goodwyn joined the portions of Justice Mann's opinion that relate to the Virginia Religious Freedom Restoration Act, and the free speech and due process provisions of the Virginia Constitution.

Florida Transgender Teachers Challenge Law That Bars Them from Using Their Preferred Pronouns

Suit was filed this week in a Florida federal district court by three current and former Florida public-school teachers who identify as transgender or non-binary. They challenge a provision of Florida law that bars K-12 teachers from providing students with the teacher's preferred title or pronouns if they do not reflect the teacher's biological sex. The 61-page complaint (full text) in Wood v. Florida Department of Education, (ND FL, filed 12/13/2023) alleges in part:

[The statute] unlawfully discriminates against Plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Title IX of the Education Amendments of 1972 because whether Plaintiffs may provide to students a particular title or pronoun depends entirely on Plaintiffs’ sex, and Florida has only an invidious basis—not an exceedingly persuasive or even a rational one—for discriminating in this harmful way. It also unconstitutionally restrains Plaintiffs’ speech in violation of the Free Speech Clause of the First Amendment to the U.S. Constitution because it prohibits Plaintiffs from using the titles and pronouns that express who they are, the same way that their colleagues do.

The Hill reports on the lawsuit.

Ohio Legislature Passes Bill on Transgender Treatment of Minors and Transgender Participation on Sports Teams

Yesterday, the Ohio legislature gave final approval to House Bill 68 (full text) which enacts the Saving Ohio Adolescents from Experimentation (SAFE) Act and the Save Women's Sports Act. The bill prohibits physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors. It requires mental health professionals to obtain parental consent before diagnosing or treating a minor for a gender-related condition. The bill also prohibits transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. The bill additionally prohibits courts from denying or limiting parental rights because of a parent's decision to raise a child according to his or her biological sex or because the parent declines to consent to the child receiving gender transition services or counseling. The bill now goes to Governor Mike DeWine for his signature. The Cincinnati Enquirer, reporting on the bill, says it is unclear whether the governor will sign the legislation.

UPDATE: On Dec. 29, Governor DeWine vetoed the bill, but offered administrative alternatives. (See subsequent posting for details.)

6th Circuit Hears Arguments on Standing to Challenge Gender Identity Ban in Health Care

On Wednesday, the U.S. 6th Circuit Court of appeals heard oral arguments in American College of Pediatricians v. Becerra. (Audio of full oral arguments.) In the case, a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care. The court also concluded that plaintiffs lacked standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages. (See prior posting.) 

Christian School Sues Vermont Challenging Sexual Orientation and Gender Identity Rules

Suit was filed yesterday in a Vermont federal district court by a Christian school seeking to participate in the state's Town Tuitioning and Dual Enrollment Programs as well as in Vermont Principals' Association athletic competitions. It has been precluded from doing so because of rules banning it from discriminating on the basis of sexual orientation or gender identity in order to participate. Two families whose children participate in athletics at the school are also plaintiffs. The complaint (full text) in Mid Vermont Christian School v. Bouchey, (D VT, filed 11/21.2023), alleges in part:

The State-through its Agency of Education ... and the Vermont Principal's Association ... requires religious schools like Mid Vermont Christian School ... to follow (and affirm compliance with) laws, rules, and policies that prevent those schools from operating consistently with their religious beliefs about sexuality and gender.

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

President Issues Statement On Transgender Day of Remembrance

The White House today issued a Statement from President Joe Biden on Transgender Day of Remembrance (full text). The President said in part:

There is no place for hate in America and no one should be discriminated against simply for being themselves. Today, on Transgender Day of Remembrance we are reminded that there is more to do meet that promise, as we grieve the 26 transgender Americans whose lives were taken this year. While each one of these deaths is a tragedy – the true toll of those victimized is likely even higher, with the majority of those targeted being women of color.

Michigan Agency Charges Hair Salon with Gender Identity Discrimination

The Michigan Department of Civil Rights this week filed a charge of sex (gender identity) discrimination on behalf of three claimants with the Michigan Civil Rights Commission. The complaint (full text) in Michigan Department of Civil Rights v. Studio 8 Hair Lab, LLC, (MI Civil Rts. Commn, filed 11/15/2023), says that a Traverse City hair salon posted the following on its business Facebook page:

If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period. Should you request to have a particular pronoun used Please note we may simply refer to you as hey you,,,, This small business has a right to refuse services. We are not bound to any oaths as relators are regarding discrimination.

Follow-up postings included the statement: "There are 2 genders; anything more is a mental health issue." The complaint contends that this posting violates the public accommodation provisions of the Elliott-Larsen Civil Rights Act. The Department of Civil Rights issued a press release announcing the filing of the discrimination charge.

Supreme Court Review Sought in Tennessee's Ban on Medical Treatment of Minors for Gender Dysphoria

 A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in L.W. v. Skrmetti, (Sup. Ct., filed 11/1/2023). In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) ACLU issued a press release  announcing its filing of the petition seeking review of the 6th Circuit's decision.

Kansas AG Asks 10th Circuit To End Required Use of Preferred Pronouns

Kansas Attorney General Kris Kobach in an Oct. 6 letter (full text) to the Chief Judge of the U.S. 10th Circuit Court of Appeals asks the court to end the practice of some district and circuit court judges to require references to counsel, parties and witnesses by use of their preferred pronouns.  The letter says in part:

There are lawyers in my office who, for both religious and non-religious reasons, reject the idea of individuals dictating their own applicable pronouns....

The idea that a person can dictate his or her own pronouns based on internal feelings and then expect others to go along with that choice is a quite recent development....  But regardless of the merits of this idea as an abstract matter, enlisting the power of the state to force others to affirm such individual choices or feelings crosses a line and raises major questions regarding compelled speech and the First Amendment.

Many people have religious beliefs that would prevent them from using pronouns that do not correspond to a person’s sex. In Christianity (the most common religion in the United States), this position generally proceeds from interpretations of Genesis 1:27 and other scriptures that speak of a male/female dichotomy among persons. Other major world religions likewise have doctrines that point in the same direction.... To force these individuals to violate their religious beliefs in order to be heard in court is a restriction on their free exercise of religion....

Indeed, “gender identity” is the subject of growing wave of legislation and litigation. So requiring those appearing in court to use (or refrain from using) certain pronouns may reveal a prejudgment on issues in litigation.

The Attorney General's office also issued a press release summarizing the letter.

School Enjoined from Social Transitioning of Students Without Parental Consent

In T.F. v. Kettle Moraine School District, (WI Cir. Ct., Oct. 3, 2023), a Wisconsin state trial court enjoined a school district from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent. The court said in part:

This Court has before it what modern society deems a controversial issue – transgenderism involving minors within our schools. Clearly, the law on this issue is still developing across the country and remaining largely unsettled. However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well established case law in that regard is clear – Kettle Moraine can not. The School District abrogated the parental rights of B.F. and T.F. on how to medically treat A.F. when the district decided to socially affirm A.F. at school despite B.F. and T.F. requesting it does not. Through its policy of disregarding parental wishes on a medical or health related decision and with how fast questioning ones gender can arise, P.W. and S.W. are at real risk of being harmed by the current School District policy. 

The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents wishes is not permissible and violates fundamental parental rights.

The Freeman reports on the decision.

6th Circuit Upholds TN and KY Laws Barring Gender Transition Treatment For Minors

 In L.W. v. Skrmetti, (6th Cir., Sept. 28, 2023), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, reversed preliminary injunctions issued by district courts in challenges to statutes in Tennessee and Kentucky prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state laws, saying in part:

No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

Judge White dissented, saying in part:

The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. I respectfully dissent.

Court Preliminarily Enjoins Montana's Ban on Transgender Treatments for Minors

 In Van Garderen v. State of Montana, (MT Dist. Ct., Sept. 27, 2023), a Montana trial court granted a preliminary injunction against enforcement of SB 99, the state's ban on surgical and hormonal treatments for minors suffering from gender dysphoria.  It concluded that the law likely violates the Equal Protection and Privacy provisions of the Montana Constitution.  The court said in part:

The Court finds that SB 99 likely violates Montana's Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted “medically-acknowledged, bonafide health risk[s][,]” and because, again, SB 99 likely cannot survive strict scrutiny.....

LawDork reports at greater length on the decision. [Thanks to Scott Mange for the lead.] 

Michigan Supreme Court Adopts New Rule Requiring Use of Preferred Pronouns, or Respectful Alternative

In Amendment of Rule 1.109 of the Michigan Court Rules, (MI Sup. Ct., Sept. 27, 2023), the Michigan Supreme Court by a vote of 5-2 adopted a Rule requiring Michigan courts to use the name and personal pronouns listed by parties and attorneys on pleadings in the case when addressing, referring to or identifying a party or attorney orally or in writing. Alternatively, the court may use "other respectful means of address not inconsistent with the individual’s designated salutation or personal pronouns." Two Justices filed opinions concurring in the adoption of the Rule, and two other Justices filed dissents. Justice Welch, concurring, said in part:

[P]eople object to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary. This was the subject of a great deal of the input we received after publishing the proposed amendments. Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that “other respectful means” can be used to address a party who makes a specific pronoun request. Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as “Attorney Smith” or “Plaintiff Smith”) does not force anyone to violate their beliefs.

Justice Bolden concurring said in part:

Some commenters have raised First Amendment concerns, arguing that the amendment compels speech and/or infringes upon religious liberty. However, Code of Judicial Conduct, Canon 2(A) ...requires judges to “accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.”... Similarly, the United States Supreme Court has explained that government employees have certain limitations on their freedom that they must accept in the workplace....

Justice Zahra, dissenting, said in part:

Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.

Justice Viviano, dissenting, said in part:

... [A]ll the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot.

CBS Detroit reports on the new rule.

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim. 

First Liberty Institute issued a press release announcing the decision. 

Teachers Get Religious Exemption from School Policy Barring Disclosure to Parents of Gender Identity Changes

In Mirabelli v. Olson, (SD CA, Sept. 14, 2023), a California federal district court granted a preliminary injunction prohibiting the Escondido Union School District from taking any adverse employment action against two teachers who have religious objections to the school district's policy of faculty confidentiality when communicating with parents about a student's change in gender identity. The court said in part:

The result of the new EUSD policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender, or wants to be addressed by a new name or new pronouns during the school day – names, genders, or pronouns that are different from the birth name and birth gender of the student. Under the policy at issue, accurate communication with parents is permitted only if the child first gives its consent to the school....

The plaintiffs in this action are two experienced, well-qualified, teachers. The teachers maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parent....

... Mirabelli believes that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children..... In a similar vein, West believes that the relationship between parents and their child is created by God with the intent that the parents have the ultimate responsibility to raise and guide their child. Both Mirabelli and West believe that God forbids lying and deceit...

EUSD contends that the government purpose of protecting gender diverse students from (an undefined) harm is a compelling governmental interest and the policy of non-disclosure to parents is narrowly tailored.... This argument is unconvincing. First, both the Ninth Circuit and the Supreme Court have found overly broad formulations of compelling government interests unavailing.... Second, keeping parents uninformed and unaware of significant events that beg for medical and psychological experts to evaluate a child, like hiding a gym student’s soccer concussion, is precisely the type of inaction that is likely to cause greater harm and is not narrowly tailored. ....

In the end, Mirabelli and West face an unlawful choice along the lines of: “lose your faith and keep your job, or keep your faith and lose your job.”... The only meaningful justification the District offers for its insistence that the plaintiffs not reveal to parents gender information about their own children rests on a mistaken view that the District bears a duty to place a child’s right to privacy above, and in derogation of, the rights of a child’s parents....

[Thanks to Jeffrey Trissell for the lead.]

Consent Decree Affirms Public Accommodation Law Exemption for Catholic Bookstore

 A Florida federal district court entered a Consent Order (full text) yesterday in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, Sept. 7, 2023).  The Order concludes that plaintiff, a privately-owned, for-profit Catholic bookstore qualifies for the religious-organization exemption in Jacksonville, Florida's public accommodation law. This exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity. In its original complaint, the store contended that the public accommodation law would have required that employees address customers using their preferred pronouns and titles, regardless of their biological sex. The store also said it wants to post its Catholic beliefs about sexuality on its website and on social media. (See prior posting.) ADF issued a press release announcing the settlement in the case.