Two recent federal cases, one in the Ninth Circuit and the other in the District Court, have grappled with the challenging question of what approach government officials must take in communicating with parents when youth present at government facilities in a gender-nonconforming way.
Both cases emerge from challenges to rules that restrict state actors from communicating with parents about these gender-related issues. In International Partners for Ethical Care Inc. v. Robert Ferguson, decided in early December by the Ninth Circuit, the law at issue was from the state of Washington and related to government employees of shelters and mental health care services. Whereas in Mirabelli v. Olson, decided shortly before Christmas, the case arose from a policy of the Escondido School District that was modeled on a policy developed by the California Department of Education.
In each case, the underlying idea of the policy or law is (or was: Escondido has changed the policy since the case started) to limit officials from communicating with parents about the fact that a youth appears to be gender-nonconforming. In International Partners, the plaintiffs lost on the grounds that they did not have standing to challenge the rule, and the Ninth Circuit upheld that loss, but some judges wrote strongly worded dissents from the denial of en banc rehearing, emphasizing parental rights to be informed about their children. In Mirabelli, on the other hand, the plaintiffs prevailed (at least for now, in the District Court), obtaining an injunction that bars the government from permitting or requiring educators to mislead parents about the child’s gender presentation, such as by referring to the child by different names/pronouns at school than in communication with the parent.
This area of the law strikes me as quite a tricky balance to strike. On the one hand, I strongly support the right of young people to live as they wish, including in gender-nonconforming ways, and there is a real concern that “outing” a young person to his or her parents as gender-nonconforming could lead to abuse or other forms of harm. On the other hand, there are complications to mandating theoretically “virtuous” silence or affirmative misrepresentation around these issues, because not everybody agrees on what virtue consists of, and government employees themselves have constitutional rights that deserve respect. Meanwhile, parents themselves historically have a strong interest in what they believe to be the welfare of their children, and that substantive due process right is not one that can be disregarded lightly. The parents in Mirabelli, drawing on Mahmoud v. Taylor, 145 S. Ct. 2332 (2025), also asserted that they have a First Amendment right to direct the religious upbringing of their children, and that a policy of non-disclosure interferes with that right.
In 2024, the state of California passed AB 1955, the SAFETY Act, which (among other things) prohibits requiring teachers to “out” students. The Mirabelli ruling asserts that it is “not about” AB 1955, and arguably there is some narrow sliver of light between the injunction and the law, since Mirabelli deals with not compulsory outing but compulsory silence. As a practical matter, however, since the injunction does not permit speech that seeks to shield a young person’s gender presentation, it does effectively require speech that will be outing in its effect, and thus strikes down the compulsory outing ban of AB 1955 without explicitly saying so.