Under the banner of religious liberty, the U.S. Supreme Court issued a “shadow docket” ruling in early March that could ultimately require public school teachers to enforce parents’ religious beliefs against their children. In its order in Mirabelli v. Bonta, the Supreme Court weakened protections for transgender children and further threw public schools into disarray.
Mirabelli, a case which is pending at the 9th U.S. Circuit Court of Appeals, challenges a constellation of California laws that together protect transgender students from being outed to their parents without consent and require teachers to use transgender students’ preferred names and pronouns.
The Supreme Court granted the emergency request of the plaintiff-parents, backed by the Thomas More Society, to block the policies from being used in this way while the litigation continues. In doing so, the court not only threw transgender students into immediate jeopardy but also signaled a willingness to expand parental rights over school authority to an unprecedented degree.
The parents’ successful “substantive due process” claims (essentially asserting a fundamental right unenumerated by the Constitution) in Mirabelli have dominated the headlines. The court held that parents must be informed about any changes to their children’s gender identity because they have a right not to be “shut out” of “participation in decisions” about “their children’s mental health.”
While that perhaps sounds good as a general matter, transgender students who do not want to disclose to their parents that they are using a different name and pronouns at school than at home may have a strong reason to withhold that information from their parents, including fear of abuse. And, in any event, California asserts the policies already allow for — or require — the disclosure of information when it might be necessary to protect the child.
By allowing “parental rights” to trump school policies already designed to protect student well-being, the court creates a dangerous dynamic. And the Mirabelli order continues the recent trend of the Supreme Court consistently siding against transgender children, including by upholding Tennessee’s law prohibiting gender affirming care in United States v. Skrmetti and by undermining Colorado’s law prohibiting harmful “conversion therapy” in Chiles v. Salazar.
As Justice Elena Kagan expressed with consternation in her dissent in Mirabelli, the conservative justices’ newfound appreciation for substantive due process also conflicts with their rejection of a right to bodily autonomy in Dobbs v. Jackson Women’s Health Organization, the case overturning the nationwide right to abortion. Substantive due process rights for me, not for thee. (In 2015, Justice ClarenceThomas wrote that substantive due process is a “dangerous” “legal fiction” that “invites judges” to “roa[m] at large in the constitutional field guided only by their personal views.” And here we are.)
But due process was not the only development in Mirabelli — the Supreme Court also signaled that it has quietly morphed its perspective on parents’ free exercise rights well beyond last spring’s already expansive decision in Mahmoud v. Taylor.
In Mahmoud, the court held that religious parents must be allowed to opt their children out of curricular material that the parents find religiously objectionable (in that case, books with LGBTQ+ characters or themes). The stated goal was to prevent children from being “coerced” to violate their religious beliefs. Here, the court majority asserts that the purported “unconsented facilitation of a child’s gender transition” intrudes on the “right of parents to guide the religious development of their children” highlighted in Mahmoud.
Yet, the students in Mirabelli independently made the decision to use different names and pronouns at school. In other words, there was no coercion. And the court is signaling that Mahmoud is not limited to instruction or to opt-outs. It might extend to any conflict between a child’s activity at school and a parent’s religious beliefs.
What does this mean, in practice? Under an expansive view, the risk of coercion may be immaterial. Parents’ claims might win even when a child’s independent decisions at school conflict with their parents’ religious beliefs. And if schools can be forced to enforce parents’ religious views on gender, they could be forced to enforce other religious beliefs. For example, imagine a child who wants to eat food at a school cafeteria not in compliance with their parents’ religious diets. Must the school notify the parents? Refuse to serve the child?
Hopefully not. There is at least some support for the idea that children have rights, including religious rights, that exist independently of their parents’. But — as is often the case with the court’s opinions on the shadow docket — the lack of full briefing (and the lack of meaningful reasoning) often creates unintentional, perplexing, or downright disturbing results that the lower courts have to detangle.
