As a wave of California public school districts scrutinize student and gender identity policies, the extent to which state law grants youth privacy rights to their parents has come under sharp scrutiny. And while the state’s Democratic leaders argue such privacy rights are clear, constitutional experts say the legal reality is more nuanced, sparking a heated debate likely to be carried through the courts.

The question of what responsibility schools have to warn parents if students say or do anything that could be considered gender nonconforming is surfacing on the agenda of school boards in conservative groups across California. In many cases, the policy is being pushed by a newly elected class of emphatically conservative administrators, ushered in last year as part of a broader uprising in “red” California against COVID-related mask mandates and school closures.

The Chino Valley Unified School District in San Bernardino County in July became the first to pass a policy requiring schools to notify parents if a student is identified as transgender or gender nonconforming, followed shortly by Murrieta Valley Unified and Temecula Valley Unified in Riverside County. The policy is under discussion in other districts, including Orange Unified.

Chino Valley policy requires district staff to notify parents in writing within three days if they notice a student using names, pronouns, or changing areas, such as bathrooms, that do not match their biological sex. proposed earlier this year by Assembly Member Bill Essayli (R-Corona).

School board hearings on the issue have been divisive, with passionate debates and similar talking points.

Proponents of parental notification policies argue that parents have a fundamental right to be involved in all aspects of their children’s lives, especially when it comes to issues of sex and gender. Opponents including Secretary of State for Public Instruction Tony Thurmond and California Atty. Gen. Rob Bonta, both Democrats argue that such policies violate student privacy rights embedded in state law and the education code. The ‘outing’ of transgender students with parents and the school community, they claim, can put a child at serious risk.

On Monday, South Chino Valley County Bonta called for an end to the parental notification policy, saying it violates civil rights and privacy laws. He has previously noted that such policies violate California Department of Education legal guidelines, which explicitly state that schools cannot disclose a student’s gender identity without the student’s consent.

The parental notification policy puts transgender and gender-nonconforming students at risk of imminent, irreparable harm from potentially returning home before they’re ready, according to the lawsuit, which asks the San Bernardino County Superior Court to stop the practice to prohibit.

Legal scholars say the issue is more nuanced than political rhetoric suggests.

The law on this is unclear because it is a new issue,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. The fact that underage students make the legal issues more difficult, but even as minors they have privacy rights.

John Rogers, a professor at UCLA’s Graduate School of Education Studies and Information Studies, described the debate as a “super-complicated issue.”

The California Education Code, Rogers said, consists of policies that help shape and guide the state’s system of public education. But it doesn’t say what to do in a specific case when we talk about students’ gender identity, he said. At the same time, he noted that the code prohibits discrimination based on disability, gender, gender identity, gender expression, nationality, race or ethnicity, and religion.

“It is certainly recognized that parents have some degree of right to information about minor children,” he said. “But those rights are not absolute, and that minor child also has certain rights related to their privacy, their autonomy and not being discriminated against.”

Rogers was one of many experts who said the balance between parental rights and students’ privacy rights is likely to be resolved in court.

Two federal regulations also come into play: the Family Educational Rights and Privacy Act and the Protection of Pupil Rights Amendment. These measures confirm that parents have access to student records and government-funded instructional materials until a child turns 18. They also allow parents to opt out of their children’s questionnaires on topics such as political affiliation and religious practices. But there are limits. For example, school staff may not include information in a student’s official file that is based solely on observation or an informal conversation between students and teachers.

Essayli, a lawyer and former federal prosecutor, is among the conservatives who challenge Bonta’s legal arguments. In early August, after Bonta announced he would open a civil rights investigation into Chino Valley’s new policies, Essayli published a public letter and demanded that Bonta specify which laws were broken.

“The Supreme Court precedent on this is very clear that parents have a civil right, a constitutional right to raise their children, even if the state doesn’t agree with the way they do it,” he said in an interview.

Essayli said the legal guidelines for schools from the Department of Education that Bonta cited are related to Assembly Bill 1266, which provides certain protections for transgender students. The bill, signed in 2013, allows transgender students to play sports and use bathrooms in accordance with their gender identity.

Essayli argues that the language of the bill does not specifically address disclosures to parents. “There is no right of privacy for children from their parents,” he said. “It doesn’t exist. They definitely got it from third parties. You can’t disclose the child’s medical condition to third parties, but we’re talking about their parents.”

Sarah Perry is a senior legal fellow at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, a right-wing think tank. Perry also questioned the basis for some of Bonta’s legal claims, saying the case law on student privacy rights is contradictory. She predicted that the issue “is very likely to make its way to the Supreme Court precisely because we see federal courts come to different outcomes when it comes to whether it’s the parents who have an interest in knowing, and whether it’s child’s interest in privacy or not is superior.”

In support of his legal argument, Bonta CN vs. Wolf, a 2006 case involving a 17-year-old female high school student who was suspended after repeatedly publicly displaying affection with another girl in a manner the principal considered a felony. Violation of campus rules that place limits on physical intimacy.

The student sued, claiming in part that the principal violated her privacy rights under California law by revealing to her mother that she had kissed another girl. A federal district court noted in its ruling that California law affords students the right to privacy regarding sexual orientation. But in this case, it was also found that under the state education code, the principal had a conflicting duty to inform parents of the reasons why a student is being disciplined.

Similar cases have surfaced in the US. In July, a federal court dismissed a case brought against the Chico Unified School District by a parent who claimed the district had violated her constitutional rights by not telling her that her child had asked to use a different school district. one gender pronoun. The lawsuit alleged that the district’s policy of granting students the right to privacy amounted to “socially transitioning” students without parental consent.

U.S. District Court Judge John Mendez said in his ruling: “The question before this court is not whether it is a good idea for school districts to notify parents of a minor’s gender identity and obtain consent before using alternative use names and pronouns, but whether the United States’ constitution prescribes such parental authority. This Court is of the opinion that this is not the case.’

The Center for American Liberty, the conservative group that is taking the case, has appealed the decision to the US 9th Circuit Court of Appeals.

As parental notification policies gain strength and legal machinations continue to develop, staff in affected districts have expressed concerns about how to implement the new policy.

Greg Goodlander,

chairman of the Orange Unified Education Assn., said teachers have not received any training on the parental notification policy the school board is considering there, and that such a proposal would have to be negotiated as part of the union’s contract.

“In addition to the legal issues, this policy requires certified staff to have the appropriate knowledge, training and time to communicate with students and guardians on sensitive and confidential issues,” Goodlander wrote in a letter to the board. “Given the number of requirements and expectations already placed on certified personnel, this is an unreasonable and very worrying expectation.”