Moms for Liberty is suing a New Jersey school district over its gender secrecy policy allowing school staff to “socially transition” students—referring to them with a new name and pronouns—without their parents’ knowledge or consent.
In New Jersey’s Chathams school district, when a student asks to “become” a different gender, Policy 5145.7 gives the school counselor sole discretion to decide whether to tell the parents.
The parents’ advocacy group claims the school’s policy defies the Supreme Court’s recent landmark ruling in Mirabelli v. Bonta, where the Court restored the rights of a group of California parents to be told if their child expresses a new “gender identity” in school.
According to the complaint, the school district’s policy also requires trans students to be allowed in team sports, locker rooms, and changing facilities of their newly expressed genders—forcing their classmates of the opposite biological sex to bathe and undress with them.
All this could happen without the parents ever finding out that their daughter might encounter a boy in the girls’ room, because he decided he’s a girl, too.
To keep up the charade—or, as the school puts it, “ensure consistency”—the school policy directs staff to keep two sets of books:
If the student has previously been known at school or in school records by a birth name, the principal should direct school personnel to use the student’s chosen name and not the student’s birth name. To ensure consistency among teachers, school administrators, substitute teachers and other staff, every effort should be made to immediately update student education records (i.e. attendance records, transcripts, individuals education programs, etc.) with the student’s chosen name and gender pronouns, consistent with the student’s gender identity and expression, and not circulate records with the student’s birth name, unless directed by the student.
…
If the District changes a student’s name or gender identity, it must also maintain locally a separate record reflecting the student’s legal name and sex assigned at birth until receipt of documentation of a legal change of name or gender.
[emphasis added]
And what if other students are unwilling to make believe their classmate is the opposite sex? According to the complaint, they could be punished for “misgendering” under the school district’s “harassment, intimidation and bullying policy”—even when speaking off campus.
The real “bullying,” reads the complaint, is forcing schoolchildren to parrot wrong-sex pronouns, itself a form of unconstitutional compelled speech.
The policy also allows students to be referred to outside “pro-trans” organizations without parental notice or consent.
While the district maintains its gender policy is mandated by the state, the lawsuit states that claim is false and misleading, because there is no such directive—only an optional policy that local districts are not required to adopt.
After the school district refused its request to rescind or amend the policy, Moms for Liberty sued in U.S. District Court for the District of New Jersey. They claim the gender policy infringes their parental, free speech, and religious rights, in violation of the First Amendment’s Free Exercise and Free Speech Clauses and the Fourteenth Amendment’s Due Process Clause.
MFL is represented by the Thomas More Society, the same group that fought and won for parents at the Supreme Court in Mirabelli v. Bonta, as we covered here.
The Supreme Court’s preliminary ruling in Mirabelli blocked California’s similar gender policies because the parents were likely to succeed on their free exercise and due process claims. Those policies “substantially interfere with the ‘right of parents to guide the religious development of their children,’” and were not likely to survive strict scrutiny.
Notwithstanding this clear Supreme Court guidance, Chathams school board president and defendant Ann Ciccarelli has doubled down on the district’s gender secrecy policy. At a public school board meeting this past June, the lawsuit states, she declared that “The United States Supreme Court decision Mirabelli is not [spoken with emphasis] binding on public school districts in New Jersey.”
The complaint calls the school’s stance “open defiance of the law of the land.” Although Mirabelli was an interim decision—and in that regard, non-binding—its scope is not, as Ciccarelli represented at the meeting, limited to California.
In fact, courts in two different circuits have already revived parental rights claims in light of Mirabelli—here and here.
Before the Court’s ruling in Mirabelli, the blue state of New Jersey, like California, sued three of its own school districts for requiring parents to be notified when their child requests to change genders, in the name of protecting trans kids’ “safety.”
But that argument—that secret social transitioning policies keep trans kids “safe”—was expressly rejected by the Supreme Court in Mirabelli: “The State’s interest in safety,” the Court concluded, “could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse.”
Instead, California’s gender policies “cut out the primary protectors of children’s best interests: their parents.”
Moms for Liberty is asking the court to declare the school’s policies unconstitutional and block their enforcement, in line with Mirabelli and Supreme Court precedent.
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