Federal District Court Dismisses Mother’s Lawsuit Against School District For Referring To Her Child By A Different Name And Gender Pronouns

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Aug 30, 2023

Aurora Regino sued the Chico Unified School District for “socially transitioning” her child without her knowledge or consent. Regino’s child was identified as female at birth, currently identifies as a girl, and is referred to using she/her pronouns in the court decision and this summary.

Regino’s 11-year-old daughter, A.S., told her school counselor that she was having feelings of gender dysphoria and identified as a boy. A.S. told the counselor that she did not want her parents informed, believing they would be upset. The school counselor asked A.S. if she wanted to use male pronouns and a male name. A.S. said yes and the counselor then instructed A.S.’s teachers to call her by a new name and refer to her by male pronouns. Regino alleges that later, when A.S. expressed an interest in informing her parents, the counselor discouraged it and encouraged A.S. to talk to other family members first. Regino did not discover that the school was addressing her child as a boy until several months later, when A.S. told her grandmother. Regino reports that A.S. currently identifies as a girl again and no longer expresses feelings of gender dysphoria. She claims that her daughter had stopped wanting to identify as a boy but felt pressure to continue because that was how she was being addressed at school, which led to depression and anxiety.

Regino brought a lawsuit, challenging the District’s Administrative Regulation 5145.3, regarding nondiscrimination and harassment. Regino alleged that the Regulation violated her constitutional parental rights because it (1) permits school personnel to socially transition students expressing a transgender identity and (2) prohibits school personnel from informing a student’s parents of this change unless the student expressly authorizes them to do so. There is an exception where law requires disclosure, or where the District has compelling evidence that disclosure is necessary to preserve the student’s health.

Regino argued that the regulation violated her constitutional parental right to make decisions regarding the care, custody, and control of her child. In her complaint, Regino argued that there are several different models for responding to a child’s feelings of gender dysphoria, including the “watchful waiting” model, the “hands off” model, the “psychotherapy” model, and the “affirmation” model. She says the school’s use of the “affirmation” model, which encourages social transitioning for children, is not appropriate for all children and situations. She argues that socially transitioning is a form of serious psychological treatment with significant future health risks, and thus, parental consent is necessary. She argued that the school is making a significant decision regarding the child’s psychological treatment that they are not trained to make, which parents and mental health professionals should make together. Regino relied on an unpublished nonbinding federal district court case from Kansas that stated that parents must be included in any decision regarding what names and pronouns that schools apply to their children.

The District argued that parental rights to make decisions regarding the care, custody, and control of one’s children do not extend to decisions regarding a school’s use of a child’s preferred pronouns and name. The District cited to two nonbinding federal district court decisions. In one case, the Central District of California found that students have a legally protected privacy interest under the California constitution with respect to information about their sexual orientation. In another case, a Maryland district court held that schools are not required to notify parents of their child’s transgender identity. The District argued that the Regulation simply required that District staff respect the gender identity and privacy wishes of students. The District maintained that it had a legitimate state interest in protecting student’s privacy and creating a “zone of protection” from potential domestic abuse.

The district court granted the District’s motion to dismiss and stated that Regino is advocating for an expansion of parental substantive due process rights, unsupported by legal precedent. She failed to provide any controlling legal authority that would permit the Court to find that her constitutional parental rights included the right to be informed of and consent to the school’s use of male pronouns for her child. To succeed on a claim for constitutional violation, Regino would have to show that a constitutional right was violated by someone acting under color of state law, such that it shocked the conscious. She failed to show that her constitutional parental rights covered the circumstances in this case. Therefore, the regulation only had to pass “rational basis review” and show that it was rationally related to a legitimate state interest. The court held the school had a legitimate state interest in protecting students’ privacy and creating a “zone of protection” from potential domestic violence.

Related Updates:

The California Department of Education has a Frequently Asked Questions page that discourages schools from sharing information about a student’s transgender identity, even to parents, without the student’s consent. It states that, “Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”

AB 1266 (Education Code 221.5) requires that California schools allow students to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity. However, it neither requires nor forbids schools from notifying parents if a student uses a different gender identity at school.

After the Regino decision came out, Chino Valley Unified School District and Murrieta Valley Unified School District adopted new regulations that require schools to notify parents and guardian writing within three school days if their child asks to be identified by a gender or name different from what was assigned at birth or if their child uses a bathroom or participates in activities that do not align with the gender provided on their student record.

On the federal level, Congressman Doug LaMalfa (R-Richvale) has introduced H.R. 1585, the Prohibiting Parental Secrecy Policies in Schools Act of 2023. Under the measure, schools that get funding under Title II of the Elementary and Secondary Education Act would be prevented from using pronouns inconsistent with a child’s biological sex without parental consent.

Regino v. Staley (2023) 2023 WL 4464845 (E.D. Cal. 2023).

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