The Supreme Court gave California parents a significant victory late Monday when it kept in place a lower court’s block of the Golden State’s public school policy hiding students’ gender identity and preferred pronouns from parents.
A 6-3 majority on the high court lifted an order from the U.S. Court of Appeals for the Ninth Circuit that had blocked a district court’s ruling that found the California public school policy unconstitutionally hides information from parents. With the Supreme Court’s order, the district court’s ruling is reinstated pending further litigation at the appeals court, meaning California’s policy of not informing parents of their child’s gender transition at school may not be enforced.
The unsigned majority pointed to the high court’s 2025 ruling in Mahmoud v. Taylor, which upheld parents’ rights to opt their children out of LGBT materials at school and found that not permitting such an option violated the free exercise clause of the First Amendment. The majority of the justices said the parents who brought the case in California were likely to succeed on their free exercise claims.
“California’s policies will likely not survive the strict scrutiny that Mahmoud demands. The State argues that its policies advance a compelling interest in student safety and privacy. But those policies cut out the primary protectors of children’s best interests: their parents,” the Supreme Court’s per curiam order said.
“Under long-established precedent, parents—not the State—have primary authority with respect to ‘the upbringing and education of children,’” the order added. “The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health.”
Justice Amy Coney Barrett wrote a concurring opinion, which was joined by Chief Justice John Roberts and Justice Brett Kavanaugh, that went into detail on her analysis of the case at its preliminary stage. Barrett also explained why the high court does not tend to elaborate on its decisions on the emergency docket, a dynamic that has drawn criticism over the past year as emergency docket cases have piled up.
“One last point: The Court has chosen to accompany today’s order with a per curiam opinion that explains its reasoning. The choice to say more rather than less is perhaps the source of the dissent’s concern that our disposition of this application will be taken as a ‘conclusive merits judgment,’” Barrett wrote.
“Interim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little. In my judgment, the benefits of explanation win out here,” she added.
Barrett also took a swipe at the Ninth Circuit panel that allowed California’s secret gender transition policy to be enforced, saying the appeals court “significantly misunderstood Mahmoud v. Taylor” and that “general course correction will allow the case to progress efficiently.”
Justice Sonia Sotomayor said she would deny the emergency application, while Justice Elena Kagan penned a dissent, joined by Justice Ketanji Brown Jackson, to the majority’s holding. Kagan’s dissent expressed concern over the majority resolving a complex issue too quickly on the emergency docket rather than through a full merits docket case.
“A mere decade ago, this Court would never have granted relief in this posture,” Kagan said, discussing the lengthy process a case normally goes through on the merits docket, allowing the high court to “explain ourselves well and carefully, both to the parties and to the public.”
“Our processes are, in short, the hallmark of judicial probity, and alike its guarantor. There was no reason to abandon them here. I respectfully dissent,” Kagan added.
Paul M. Jonna, special counsel at Thomas More Society, which filed the emergency application to the high court, celebrated the order in a statement on Monday, calling it a “watershed moment for parental rights in America.”
“The Supreme Court has told California and every state in the nation in no uncertain terms: you cannot secretly transition a child behind a parent’s back,” Jonna added. “The Court’s landmark reaffirmation of substantive due process, its vindication of religious liberty, and its approval of class-wide relief together set a historic precedent that will dismantle secret gender transition policies across the country.”
The Becket Fund for Religious Liberty, which won the Mahmoud v. Taylor case the high court referenced in its majority order Monday, also celebrated the decision as a “victory for parental rights, religious freedom, and common sense.”
“Once again, the Supreme Court has made clear that parents do not take a backseat to anyone when it comes to raising their kids, especially not government bureaucrats,” Mark Rienzi, president and CEO of Becket, said.
In her dissent, Kagan also highlighted one of a pair of similar cases that have been petitioned to the Supreme Court on its merits docket. Those cases are awaiting a decision on whether they will be heard during the high court’s next term, beginning in October.
GENDER TRANSITIONS AT SCHOOLS POISED TO BE NEXT FRONT IN TRANSGENDER LEGAL WAR
The Supreme Court is scheduled to discuss applications for those two cases, Littlejohn v. School Board of Leon County and Foote v. Ludlow School Committee, during its closed-door Friday conference. A decision on whether the Supreme Court will hear either case could come as soon as Monday.
If the Supreme Court agrees to hear either case, it would mark the high court’s latest venture into the parental rights and religious liberty battles in federal courts, as secret school gender transitions are poised to be the next major issue the justices may consider in the legal battle over transgender policies involving children.