PASADENA, Calif. (CN) - The city of Huntington Beach on Tuesday pleaded with a panel of the Ninth Circuit Court of Appeals to reinstate its constitutional claims against a California law that prohibits school districts from requiring that teachers inform parents about their child's gender identification without the student's consent.

Huntington Beach, a conservative enclave in the generally liberal-leaning state, and ten parents sued last year after California Governor Gavin Newsom signed Assembly Bill 1955, known as the SAFETY Act. The law was enacted in response to the "forced outing" policies adopted by some California school districts in recent years that required teachers to notify parents if their child identifies as transgender.

"Because of AB 1955, parents have to live in constant fear that, if they send their kids to public schools, somebody in the public school, without even any warning or suggestion of gender dysphoria, might try to put a kid on the path toward gender transition," Gene Schaerr, an attorney for the city and the parents, argued at the Tuesday hearing.

In response to the California law, Huntington Beach passed its own "Parents Right to Know" ordinance that requires teachers to inform parents of their children's sexual orientation and gender identification.

The three-judge appellate panel didn't indicate how they might rule on the city and parents' appeal, but suggested that they could send the case back to a trial judge in Los Angeles to decide if the plaintiffs should be allowed to overcome their failure to establish legal standing, which prompted the judge to dismiss the case in June.

The case is in a somewhat unusual legal position - the same Ninth Circuit panel last month denied the plaintiffs' emergency motion for a preliminary injunction pending appeal, but said that the trial judge had got it wrong insofar as she had assumed that AB 1955 prohibits schools from disclosing information about gender identity or gender expression.

Rather, the provisions of the SAFETY Act that the city and parents challenge only say that school employees can't be required to disclose any information related to a student's sexual orientation, gender identity or gender expression without the student's consent - unless otherwise required by state or federal law - and that school districts can't enact policies that require this.

"Nothing in the language of these provisions forbids a school employee from deciding to disclose such information to a parent in a given case, even without the child's consent," the panel said in its Sept. 12 ruling. "Nor does anything in these provisions forbid a school district from adopting a policy that employees may elect to make such disclosures. By their terms, these two challenged provisions only prohibit mandatory reporting policies or directives."

U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, referred back to that ruling to question the plaintiffs' attorney whether they hadn't sued the wrong parties since the state law in itself doesn't prohibit disclosure of information about students' gender identification.

And while Schaerr argued that state law would allow an individual teacher to begin so-called social transitioning - by using the pronouns and name a student experiencing gender dysphoria prefers, for example - without telling the parents, the judge wasn't persuaded that was enough to challenge the statute.

"That might be a good claim to make if you had sued the school districts as additional defendants, but you have to trace the injury to AB 1955," Collins said. "And if all it does is prohibit mandatory policies and leaves it up to the discretion of the teacher, then it's not clear that you've established that any teacher or any school district would otherwise have provided the information of AB 1955 - and that seems the core of the standing issue."

In addition, U.S. Circuit Judge Lucy Koh, a Joe Biden appointee, questioned to what extent some of the parents from various parts of California who joined Huntington Beach's lawsuit were actually misinformed about their child's gender identification because of the new law that went into effect this year.

One parent from Orange County, California, identified in court filings as 7A, knew her child was using a different name and different pronouns for quite some time, the judge noted.

"There are so many instances during freshman year, the summer of freshman year, during sophomore year, just repeatedly," Koh noted. "If the parent has this much information, don't they have, number one, the information they are requesting and, number two, enough information to direct the medical care and treatment of the child."

Moreover, Koh said, parents have the legal right to access their child's academic record and attend the classroom if they wanted, which would give them a sufficient opportunity to observe if their child was experiencing gender dysphoria or in the process of social transitioning.

Schaerr, however, argued that teachers and school counselors could through private conversations help students with social transitioning in a way that was shielded from their parents.

Koh and Collins were joined on the panel by U.S. Circuit Judge Kenneth Kiyul Lee, a Trump appointee.

Source: Courthouse News Service