[00:00:01] Speaker 02:
Council John.

[00:00:12] Speaker 05:
Please the court.

[00:00:13] Speaker 05:
Josh Dixon Center for American Liberty on behalf of Appellant Aurora Regina.

[00:00:18] Speaker 05:
I'd like to reserve four minutes, please.

[00:00:21] Speaker 02:
All right, please watch your clock.

[00:00:24] Speaker 05:
Thank you, Your Honor.

[00:00:26] Speaker 05:
Parental rights case law reflects one enduring principle.

[00:00:29] Speaker 05:
The best way to protect children from harm is to give their parents broad authority over them.

[00:00:35] Speaker 05:
Children are immature and make rash decisions, while parents are presumed to be fit and to act in their children's best interests.

[00:00:43] Speaker 05:
The parental right is not absolute, of course, but the state's efforts to regulate the family must honor these presumptions of parental fitness and affection.

[00:00:52] Speaker 05:
The parental secrecy policy violates the parental right for four reasons.

[00:00:57] Speaker 05:
First, the complaint plausibly alleges social transitioning is a significant form of mental health care treatment with serious potential consequences and schools may not provide it to children without parental consent absent exigent circumstances.

[00:01:11] Speaker 05:
Second, the complaint plausibly alleges the decision to socially transition a child goes to the heart of parental decision-making, and schools may not make this decision based solely on the child's request.

[00:01:23] Speaker 05:
Third, the complaint plausibly alleges that socially transitioning children in secret from their parents cuts deep into the fabric of the family, driving a wedge between parents and their children just when the children need it the most.

[00:01:36] Speaker 05:
And fourth, the complaint plausibly alleges

[00:01:39] Speaker 05:
The policy fails to provide parents the most basic procedural safeguards before socially transitioning their children.

[00:01:45] Speaker 04:
Council, several of your counts are facial challenges.

[00:01:50] Speaker 04:
Yes, Your Honor.

[00:01:54] Speaker 04:
I have a hard time seeing how, even if the policy is what you say it is, that it would be unconstitutional in every possible circumstance or application, such as, for example, a circumstance where a child told the school that if my parents find out, they're going to beat me like they have before.

[00:02:23] Speaker 04:
So explain to me how the, say, for example, for your substantive due process claim that the policy, again, even if it is what you say it is, is unconstitutional in every application.

[00:02:41] Speaker 05:
As this court held in the Lopez Valenzuela case, the fact that a statute could conceivably, or a state action, could conceivably be done consistent with the Constitution does not preclude a facial challenge when the policy itself fails to provide procedural safeguards to protect that right.

[00:03:01] Speaker 05:
So for example, even in the situation where a parent, the child says the parent is going to abuse them,

[00:03:07] Speaker 05:
The parent isn't entitled to an adjudication of that fact.

[00:03:11] Speaker 05:
And so the way that this should go forward is that allegation is made to CPS.

[00:03:18] Speaker 05:
CPS investigates and evaluates whether or not, in fact, the parent is fit or whether the parent would cause the child harm.

[00:03:25] Speaker 05:
But simply the school relying on the child's allegation does not give the adjudicative process a chance to play out.

[00:03:37] Speaker 05:
So in every case, the policy may not be applied constitutionally, even though there may be some situations where parental consent can be bypassed.

[00:03:48] Speaker 02:
The other problem with the policy... Is this case moot as applied to your particular plaintiff?

[00:03:56] Speaker 02:
I mean, given that the child has determined that they are not transgender,

[00:04:04] Speaker 02:
And the policy isn't applying at all to the child.

[00:04:08] Speaker 02:
Why isn't this case moved?

[00:04:10] Speaker 05:
I don't think it's quite an accurate characterization to say the child has determined the child is not trained.

[00:04:15] Speaker 02:
Well, didn't the child say, never mind, after a certain period of time, I thought maybe I was actually

[00:04:23] Speaker 02:
a transgender ring, but now we're talking about what an eight year old, a fifth grader.

[00:04:28] Speaker 05:
So we're talking about the child has presently desisted from the transgender identity.

[00:04:34] Speaker 02:
But I mean, this is how is this capable of repeating itself?

[00:04:37] Speaker 02:
And what do you what's your argument that this case isn't

[00:04:41] Speaker 05:
Right, so the child has desisted from the transgender identity for now.

[00:04:45] Speaker 05:
The child is still dealing with the underlying conditions that cause the transgender.

[00:04:49] Speaker 02:
And by the way, doesn't the parent know now?

[00:04:52] Speaker 02:
I mean, whatever the child is dealing with, isn't the parent well aware of it?

[00:04:57] Speaker 05:
The parent does not know at this, as we stand here right now, the parent does not know whether the child is being socially transitioned at school.

[00:05:04] Speaker 02:
That's another issue.

[00:05:07] Speaker 02:
The policy is just to exceed to the child's wishes and not do anything else.

[00:05:15] Speaker 02:
What is the social transitioning that you're accusing the school of doing?

[00:05:21] Speaker 05:
The social transitioning is when the school creates the environment for the child under which the child is affirmed.

[00:05:30] Speaker 05:
Affirmation.

[00:05:30] Speaker 02:
Is that the policy?

[00:05:32] Speaker 02:
What is the precise contours of the policy here?

[00:05:36] Speaker 02:
Because I think there's some argument that it's actually psychiatric or psychological treatment versus just being neutral.

[00:05:46] Speaker 05:
So we have three different theories.

[00:05:48] Speaker 05:
The first, I believe Your Honor is getting at, is that social transitioning constitutes a form of psychological treatment.

[00:05:54] Speaker 05:
And I would analogize the situation to an Alcoholics Anonymous meeting.

[00:05:59] Speaker 01:
Could I interrupt here just to make sure I'm understanding your answer to Judge Wardlaw's question.

[00:06:03] Speaker 01:
When you use social transitioning, I think, in your briefing pretty much, you're talking about calling a child by a different name at his or her request and changing pronouns.

[00:06:15] Speaker 05:
That's correct.

[00:06:16] Speaker 01:
That's it?

[00:06:16] Speaker 01:
For purposes of this answer?

[00:06:18] Speaker 01:
For purposes of, yes.

[00:06:18] Speaker 01:
Thank you.

[00:06:19] Speaker 05:
That's what happened to the child in this situation.

[00:06:22] Speaker 01:
I'm sorry.

[00:06:23] Speaker 01:
Does it include telling the rest of the faculty for purposes of what we're talking about right now?

[00:06:28] Speaker 05:
Yes, so the policy provides that when a student asks to go by a new name and pronoun, that the disinformation will be shared with the school administrators, other students, must refer to that child by the new name and pronouns.

[00:06:42] Speaker 01:
OK, thank you.

[00:06:43] Speaker 01:
But I didn't mean to deter you from answering Judge Ward last question.

[00:06:47] Speaker 05:
Right, so it is that creation of the environment, kind of like an AA meeting, when someone goes to an AA meeting, recognized treatment for alcoholism.

[00:06:55] Speaker 05:
There's a circle, people share their stories.

[00:06:58] Speaker 05:
I wouldn't say that individuals in the circle are, quote, providing treatment, but it is the creation of this environment that provides the treatment.

[00:07:06] Speaker 05:
In the school setting, it is the creation of this environment where the child's transgender identity is affirmed.

[00:07:13] Speaker 05:
The affirmational model of treatment is one of two models of treatment, the other primary one being watchful waiting.

[00:07:20] Speaker 05:
Watchful waiting, in essence, acknowledges that the vast majority of children who experience a transgender identity will grow out of it by the time they're adults.

[00:07:28] Speaker 05:
We don't really know why, but we know that that is the case.

[00:07:30] Speaker 05:
There are 11 studies that establish it.

[00:07:33] Speaker 05:
Affirmation is a different paradigm.

[00:07:37] Speaker 05:
Rather than watchful waiting to see if the child grows out of it, affirmation takes the affirmative step of affirming the child's identity for the purpose of potentially relieving the psychological distress associated with having a transgender identity.

[00:07:50] Speaker 05:
Now, the district argues that all this is is mere acknowledgement of who the child is.

[00:07:56] Speaker 05:
That may very well be true for adults, excuse me, but it is not the case in children.

[00:08:04] Speaker 05:
Children's identity, gender identity is not fixed.

[00:08:06] Speaker 05:
Again, most of the children who experience a transgender identity grow out of it.

[00:08:12] Speaker 05:
And so when you introduce social transitioning, the numbers flip-flop.

[00:08:17] Speaker 05:
Most children absent social transitioning grow out with social transitioning, do not.

[00:08:21] Speaker 05:
So it changes outcomes.

[00:08:22] Speaker 01:
Your briefing makes this point, and I think what you're implying in your briefing is that there's causation, as opposed to correlation.

[00:08:30] Speaker 01:
That's correct.

[00:08:31] Speaker 01:
That's your assertion.

[00:08:33] Speaker 01:
That's the allegation.

[00:08:33] Speaker 01:
And we don't have any findings, right?

[00:08:35] Speaker 01:
We don't have any findings at this point about whether that is really borne out.

[00:08:38] Speaker 01:
But I think your client's position is that is a harm from this policy because there's a lost opportunity.

[00:08:46] Speaker 01:
That's my paraphrase of her position.

[00:08:48] Speaker 01:
Is that correct?

[00:08:49] Speaker 05:
Well, two responses.

[00:08:50] Speaker 05:
Number one, you're absolutely right.

[00:08:52] Speaker 05:
There's no evidence.

[00:08:52] Speaker 05:
We're at a Rule 12b6 stage.

[00:08:54] Speaker 05:
And so the court must take our allegations as true.

[00:08:57] Speaker 05:
We have alleged what I just said, in essence.

[00:09:00] Speaker 05:
The second response is that, yes, it is causative.

[00:09:06] Speaker 05:
It changes outcomes.

[00:09:08] Speaker 05:
And so rather than just acknowledging... Again, that's your assertion.

[00:09:12] Speaker 01:
I just wanted to make sure I understand your theory.

[00:09:14] Speaker 01:
Correct.

[00:09:14] Speaker 05:
Yes, Your Honor, that's the theory.

[00:09:16] Speaker 04:
So, Counsel, could you explain to me the difference between your substantive due process claim, which I think I understand, and your First Amendment claim, that what would be part of your First Amendment claim that isn't part of, for example, your substantive due process claim in this case?

[00:09:36] Speaker 04:
Yes, sir.

[00:09:37] Speaker 04:
In and as applied challenge.

[00:09:41] Speaker 05:
I would say with respect to both as applied and facial, it's our reading of the Keats case that the First Amendment, it completely overlaps with substantive due process in this scenario.

[00:09:53] Speaker 05:
Keats describes the right as an associational right.

[00:09:56] Speaker 05:
And while other Ninth Circuit cases discussing various aspects of the parental right, like the Mann case, the Wallace case, don't use, specifically invoke the First Amendment, they do invoke the concept of an associational right.

[00:10:12] Speaker 05:
So it is our interpretation of the Keith's case, the Mann case, DeWalls case, that the two rights are perfectly coextensive.

[00:10:18] Speaker 04:
So there's nothing vis-a-vis, in your view, a First Amendment claim, nothing extra that you would need to prove to succeed on a First Amendment claim that you wouldn't need to prove to succeed on a substantive due process claim?

[00:10:34] Speaker 04:
Do I have that right?

[00:10:35] Speaker 04:
I believe so, Your Honor.

[00:10:36] Speaker 04:
All right.

[00:10:36] Speaker 04:
Thank you.

[00:10:37] Speaker 04:
Yes, Your Honor.

[00:10:37] Speaker 01:
I'd like to ask you to help me understand more about your assertion that your client's position is not that her parental rights are unlimited.

[00:10:47] Speaker 01:
I think you said as much.

[00:10:48] Speaker 01:
But I'm not sure where you draw the line there.

[00:10:50] Speaker 01:
And that's why I asked you to help me out with where in the process you or what you include in social transitioning.

[00:10:57] Speaker 01:
So what I mean by that is if a child

[00:10:59] Speaker 01:
Just a hypothetical child goes to account school counselor and and reveals that I think in this case the allegations that she felt she felt like a boy and wanted to be known by a different name and if it didn't go any farther and she didn't give the counselor permission your To share that more broadly in the school at that point.

[00:11:20] Speaker 01:
Anyway, is it your client's position that there should be a duty to inform her of that?

[00:11:25] Speaker 05:
No, your honor

[00:11:26] Speaker 05:
It is our contention that is the creation of the environment.

[00:11:30] Speaker 05:
And so the state and its briefing, I'm sorry, Your Honor.

[00:11:33] Speaker 01:
So hold on, just to make sure that I understand you.

[00:11:34] Speaker 01:
So what your contention is that what triggers the parent's right, and I guess the school's obligation to notify the parent, is the decision for the counselor to tell the faculty, please call this student by this name and use these pronouns.

[00:11:48] Speaker 01:
Is that it?

[00:11:49] Speaker 05:
Yes, Your Honor.

[00:11:50] Speaker 05:
If the child just relays to a counselor, a teacher, whatever,

[00:11:54] Speaker 05:
I think I'm transgender and the conversation ends there.

[00:11:57] Speaker 05:
There's no duty to disclose at that point.

[00:12:00] Speaker 05:
It is when the school goes further and takes the affirmative step of creating this environment for the child that the Constitution is offended.

[00:12:10] Speaker 04:
as applied challenge, you are also alleging other facts with regard to what happened to this child that you say triggers the duty as well, right, including the conversations as to possible surgery or other things.

[00:12:27] Speaker 04:
Do I have that right, or is that not part?

[00:12:29] Speaker 05:
That's not part of the claim.

[00:12:30] Speaker 05:
I mean, it happened, and so it's alleged.

[00:12:35] Speaker 05:
But the claim, and to get back to Judge Wardlaw's question about mootness,

[00:12:39] Speaker 05:
Our claim is a prospective relief claim only.

[00:12:43] Speaker 05:
And so any facts that happen in this particular situation that go beyond what the policy calls for are really ancillary to the claim.

[00:12:51] Speaker 01:
But it's not the case that you're suggesting that the, apart from, I think we all understand there's mandatory reporting provisions where even though a child thinks he or she's having a confidential conversation, their educators have an obligation to report certain harms.

[00:13:05] Speaker 01:
I'm setting that aside for purposes of this inquiry.

[00:13:08] Speaker 01:
It sounds like you're not asserting that the parent has a right to invade what I'm thinking of as a confidential, therapeutic relationship, meaning the child counselor relationship.

[00:13:21] Speaker 05:
That's, as a general matter, that's correct.

[00:13:22] Speaker 01:
Okay.

[00:13:24] Speaker 04:
So, you know, just adding some facts to what Judge Christen was asking, for example, in something that sadly is not a made-up type of hypothetical in general, like if a child told a counselor,

[00:13:41] Speaker 04:
I'm being sexually abused by a relative or something like that, including a parent, that nothing about your claim suggests that the particular parent or a parent has a right immediately to know that.

[00:13:53] Speaker 05:
Absolutely not.

[00:13:55] Speaker 05:
No, that's, I'm sorry, that's absolutely correct.

[00:13:58] Speaker 05:
It is only when the school takes the affirmative step to again, create this environment, provide the treatment to the child that the duty is triggered.

[00:14:06] Speaker 05:
The state in its brief has this argument that

[00:14:09] Speaker 05:
If our position is accepted, the school will be required to report to parents when it sees two boys hugging in the hallway.

[00:14:16] Speaker 05:
It's a ridiculous argument.

[00:14:17] Speaker 05:
That's a straw man.

[00:14:18] Speaker 05:
We're not continuing any, even direct knowledge that the child is identifying as LGBT, whatever the case may be, much less a suspicion.

[00:14:26] Speaker 02:
What about the child's rights here?

[00:14:27] Speaker 02:
Doesn't the child have some rights when the school asks the child, can we please talk to your parents about this, and the child says no?

[00:14:38] Speaker 05:
The district invokes what it claims is an informational privacy right that it asserts children have against their parents to keep the fact that the school is secretly socially transitioning.

[00:14:50] Speaker 05:
There is no warrant in the case law for creating this informational privacy right against students, or against parents, I should say.

[00:14:57] Speaker 05:
Our briefing explains all the reasons why, but I just want to hit the high point.

[00:15:01] Speaker 01:
Can I just stop you there?

[00:15:02] Speaker 01:
Because I think we've just explored admittedly a very extreme area and one that doesn't apply to this case, where the charters were really reporting a colorable, concerning history of harm.

[00:15:13] Speaker 01:
and then to follow up on Judge Bennett's question.

[00:15:16] Speaker 02:
It would be nice if you could let him answer my question before you interrupt.

[00:15:19] Speaker 02:
Judge Kristen, please would you answer my question?

[00:15:22] Speaker 02:
What about the child's rights?

[00:15:24] Speaker 05:
Yes, Your Honor.

[00:15:25] Speaker 05:
Again, the district invokes children's informational privacy rights.

[00:15:30] Speaker 05:
In this setting, there is no informational privacy right.

[00:15:34] Speaker 05:
Top line argument, schools conduct social transitioning throughout the school environment, in the classroom, in the hallways, at recess, throughout the school environment.

[00:15:45] Speaker 05:
There is no reasonable expectation of privacy that a child has in things that go on throughout the school environment against their parents.

[00:15:54] Speaker 05:
There is not a circuit court in the country that has ever held that children have informational privacy rights against their parents.

[00:16:01] Speaker 05:
in anything.

[00:16:02] Speaker 05:
The Bellotti line of cases, the abortion cases, put those aside.

[00:16:07] Speaker 05:
Not a single court in the country has held that children have an informational privacy right against their parents.

[00:16:12] Speaker 05:
And the consequences of that holding would be horrific on parent-child relationships.

[00:16:17] Speaker 05:
I mean, what does that mean exactly?

[00:16:19] Speaker 02:
If a child goes in to... The other practical... There's a couple of practical things about that, though, that wouldn't the parent

[00:16:29] Speaker 02:
I mean, the parent has its own relationship with the child.

[00:16:32] Speaker 02:
Wouldn't the parent be able to observe on its own that there's something different about the child and what's going on?

[00:16:40] Speaker 02:
And if, in fact, the school is creating an affirming environment, don't you think other kids and other parents would know about that?

[00:16:50] Speaker 02:
I mean, isn't that something that would otherwise be public and come to the attention of the parent?

[00:16:54] Speaker 02:
I mean, what I'm saying is, why impose this duty on the school?

[00:16:59] Speaker 05:
Well, here, I mean, the parent only learned because the child eventually told the grandparent.

[00:17:04] Speaker 05:
I mean, there's no obvious perception that parents would have that a child is being socially transitioned at school.

[00:17:11] Speaker 05:
There's not like an obvious marker that a parent could look at and say, oh, my child is transgender, or whatever the case may be.

[00:17:18] Speaker 05:
I mean, I think that the problem with the informational privacy argument, again, no reasonable expectation of privacy.

[00:17:29] Speaker 05:
The bigger point is that children, I mean, parents have to know what's happening at school in order to guide and direct their children.

[00:17:37] Speaker 05:
There's no warrant for creating this informational privacy right that impedes the parent-child relationship.

[00:17:44] Speaker 05:
So far as we can tell, and the district has cited only one case, there's precisely one case that holds that there is an informational privacy right, and that's the Nguyen case out of the Central District of California.

[00:17:55] Speaker 05:
It's terribly reasoned, the decision, as it doesn't look at the history and tradition of parental control over children in this country.

[00:18:04] Speaker 05:
It cited to Sterling, which is a Third Circuit case, which involved an 18-year-old, not a minor.

[00:18:10] Speaker 04:
So, counsel, even if theoretically there could be an informational privacy right for a child,

[00:18:19] Speaker 04:
As I understand it, there's, and I'm going to ask your friends, but there's nothing that I see in this policy, at least as written on ER 98 and 99, that distinguishes between a six-year-old child who's in kindergarten and a 17-year-old child who's in 11th grade.

[00:18:40] Speaker 04:
So first, do I have that wrong?

[00:18:43] Speaker 04:
That is my understanding.

[00:18:45] Speaker 04:
And so I could see circumstances where, for example, a 17-year-old with regard to birth control or abortion or other intimate privacy matters could have, in some factual circumstances, a right to informational privacy.

[00:19:07] Speaker 04:
Do you think we're called upon in this case to decide that there is no child that has any right to informational privacy Irrespective of their age and the circumstances no not at all your honor this this case presents one question Social transitioning does the child have the right to be socially transitioned at school without their parents involved?

[00:19:27] Speaker 05:
these other issues about abortion or whatever the case may be, they're not pertinent here.

[00:19:32] Speaker 04:
So you're not asking us to decide there's never a right to informational privacy ever for any minor who's a student?

[00:19:41] Speaker 04:
That is absolutely correct.

[00:19:42] Speaker 05:
We are not asking for that ruling.

[00:19:43] Speaker 05:
We're asking for the ruling on the specific facts of the case here.

[00:19:47] Speaker 01:
You argued that the district court erred right at the gate, I think, because of the failure to have clearly established a Supreme Court authority that goes right to the specific right that is asserted here.

[00:20:06] Speaker 01:
So if we agree with that, other than I know you're going to say you would like the case to be remanded, what direction should we give to the district court on remand?

[00:20:16] Speaker 05:
Well, I would like a ruling that the First Amendment and Substantive Due Process Clause are coextensive in this context, and that we don't have to look at Glaxburg, the Substantive Due Process line of cases, to get there.

[00:20:31] Speaker 01:
Well, here's the problem.

[00:20:33] Speaker 01:
It seems to me the policy is not, you know, the way you describe it, and I think correctly, is that it's not neutral.

[00:20:44] Speaker 01:
It favors the child's invocation of a right to privacy, but it's also not unlimited.

[00:20:51] Speaker 01:
There's a procedural mechanism built into the policy if there's compelling circumstances that are shown.

[00:20:57] Speaker 01:
and both sides allege that there are harms that could result.

[00:21:01] Speaker 01:
Your client is certainly alleged that it's harmful to the parent-child relationship if the information is kept private.

[00:21:07] Speaker 01:
and the opposing party, and of course we have from both sides the benefit of lots of amicus briefing that goes the other way.

[00:21:12] Speaker 01:
And so that some children, at least, could be really harmed in the alternative.

[00:21:17] Speaker 01:
So what we don't have is any factual development about whether the evidence can bear out either one of those conditions.

[00:21:24] Speaker 01:
Exactly.

[00:21:25] Speaker 05:
Exactly.

[00:21:26] Speaker 05:
And that's why we're here.

[00:21:27] Speaker 05:
I mean, we have alleged a set of circumstances that give rise to a cause of action.

[00:21:31] Speaker 05:
The other side has

[00:21:34] Speaker 05:
attempted to refute that, this is 12b6.

[00:21:37] Speaker 05:
This is not the time or place for that.

[00:21:38] Speaker 01:
So go back to my question, if you would, please.

[00:21:40] Speaker 01:
I keep trying to get to it.

[00:21:41] Speaker 01:
If we were to remand this case, what direction should we give to the district court?

[00:21:48] Speaker 05:
I see my time.

[00:21:48] Speaker 05:
May I respond?

[00:21:49] Speaker 05:
Yes, of course you may answer the question.

[00:21:55] Speaker 05:
The guidance would be a holding that these allegations that we have alleged state a viable claim.

[00:22:02] Speaker 05:
It is for the district court upon remand to assess the evidence in way and determine whether or not

[00:22:10] Speaker 05:
as a factual matter, we have alleged or we have proven the four theories that we have alleged.

[00:22:16] Speaker 05:
But as far as giving guidance, I think that this court can create a great deal of clarity in the law by holding that we have alleged, plausibly so, the four theories of relief that we have sought.

[00:22:29] Speaker 01:
But one of your theories is dependent upon this baked-in fact finding that there weren't compelling circumstances here.

[00:22:36] Speaker 01:
I think you've conceded that there are some circumstances where a child could raise this concern and there would not be a need to notify the parent, at least not directly.

[00:22:44] Speaker 05:
That's right.

[00:22:45] Speaker 05:
But from a procedural due process perspective, that's really where the deficient, you know, fact-finding comes in.

[00:22:53] Speaker 05:
I mean, parents are entitled to notice and an opportunity to be heard at the moment the school decides to socially transition the child.

[00:23:02] Speaker 05:
And so because the school is doing that without even notifying the parents, much less giving them an opportunity, we heard they're violating the procedural due process clause.

[00:23:13] Speaker 05:
So we have alleged the existence of a triggering right, triggering liberty interest that implicates the procedural due process clause.

[00:23:22] Speaker 05:
It is the failure to provide notice and an opportunity to be heard that constitutes the procedural violation.

[00:23:27] Speaker 05:
Thank you, Council.

[00:23:28] Speaker 05:
Thank you, Anderson.

[00:23:31] Speaker 02:
Did you want to reserve the remainder of your time?

[00:23:33] Speaker 05:
Four minutes, please.

[00:23:36] Speaker 02:
Well, you have two minutes.

[00:23:37] Speaker 02:
Thank you, Your Honor.

[00:23:56] Speaker 02:
Thank you.

[00:23:56] Speaker 02:
Mr. Johnson?

[00:23:58] Speaker 03:
Yes, Your Honor.

[00:24:00] Speaker 02:
You're arguing on behalf of Kelly Staley.

[00:24:05] Speaker 03:
I am, Your Honor.

[00:24:06] Speaker 02:
All right.

[00:24:07] Speaker 02:
You may proceed.

[00:24:09] Speaker 03:
Thank you, Your Honor.

[00:24:09] Speaker 03:
Based upon the argument that appellant has provided this morning, it appears that appellant has significantly narrowed the arguments from which they are relying upon.

[00:24:20] Speaker 03:
Throughout the course of this litigation, they've raised several, several arguments, but based upon

[00:24:25] Speaker 03:
what they now allege in their oral argument, what triggers allegedly the right of parents to notice is only the acceptance of the pronouns, the acceptance of the names, the acceptance of the creation of this environment in which the school is accommodating the new transgender names and pronouns.

[00:24:45] Speaker 03:
So what it appears, Your Honor, to be is that based upon this oral argument,

[00:24:51] Speaker 03:
Appellant is really just narrowing their argument to their treatment, their treatment analysis being that we believe, or this is appellant talking, appellant believes that accommodating the new pronouns, accommodating the new names in some way, shape, or form

[00:25:08] Speaker 03:
constitutes a treatment, and it is that treatment, that alleged treatment, which then allegedly necessarily triggers the need for notice and consent of the parent.

[00:25:21] Speaker 04:
Well, Council, I'm not sure I agree with you as to what your friend's argument is, but putting that aside, the way I read the policy on ER 98 and 99,

[00:25:35] Speaker 04:
And correct me if I'm wrong, that first of all, it applies by its terms to any student irrespective of age.

[00:25:44] Speaker 04:
There's no age-limiting factors in the policy itself.

[00:25:48] Speaker 04:
Am I correct?

[00:25:49] Speaker 03:
So that's partially correct, Your Honor, in that, yes, any student can trigger AR 5145.3 by saying, hey, I feel I am transgender, and I would like new names and pronouns to be.

[00:26:03] Speaker 04:
And then the starting point for this, if I recall, as I read it, is that subject to part two, the information can only be disclosed

[00:26:17] Speaker 04:
with the student's prior written consent.

[00:26:20] Speaker 04:
And again, that applies whether the student is six and in kindergarten or 17 and in 11th grade, by its terms, yes?

[00:26:29] Speaker 03:
That's partially accurate, Your Honor, because also by its terms, the decision of the minor is subject to adult review, subject to district review.

[00:26:37] Speaker 04:
Right, but part one applies no matter how old the child is.

[00:26:42] Speaker 04:
That is correct, Your Honor.

[00:26:46] Speaker 04:
There can be disclosure only when, if there's not the written consent, only when required by law or when the district has compelling evidence that disclosure is necessary to preserve the student's physical or mental well-being.

[00:27:07] Speaker 04:
Putting aside the required by law part, like if there's an assault involved or something like that, but putting aside that the only thing that triggers it is when the district has compelling evidence that disclosure is necessary to preserve the student's physical or mental well-being.

[00:27:23] Speaker 04:
Do I have that right also?

[00:27:25] Speaker 03:
That is correct, John.

[00:27:26] Speaker 04:
Okay.

[00:27:26] Speaker 04:
Thank you.

[00:27:28] Speaker 03:
Okay, so returning to the treatment argument, the argument that it is a treatment and therefore because it is a treatment, parents are necessarily entitled to notice and consent.

[00:27:40] Speaker 02:
He's arguing that social transitioning is a treatment and that exceeding to the child's wishes equals social transitioning.

[00:27:54] Speaker 03:
And we know that that is not accurate, Your Honor, and we know that based upon the Karnosky case, which is the Ninth Circuit case that the California Department of Education speaks about in its briefing, we know that that's not the case from the Grimm Fourth Circuit case, which we, the district,

[00:28:11] Speaker 03:
uses in its briefing, and we know that's not it because we know what social transitioning is and we know what it is not.

[00:28:18] Speaker 03:
Social transitioning is not an external, a third party doing something to a transgender person.

[00:28:26] Speaker 03:
We know through these cases, Karnosky and Grimm, what social transitioning is.

[00:28:31] Speaker 03:
It's the internal decision of the transgender person themself.

[00:28:37] Speaker 03:
to start living a lifestyle through dress, through pronouns, through names, what have you.

[00:28:43] Speaker 03:
It is the internal decision of the transgender person itself to start living a lifestyle more akin to or more attuned to their gender identity and a less attuned to their sex assigned at birth.

[00:28:57] Speaker 03:
It is not an external third party.

[00:28:59] Speaker 03:
It's not something the district is doing to the transgender person.

[00:29:03] Speaker 03:
It's the decision of the transgender person itself.

[00:29:06] Speaker 03:
What the district is doing is called accommodation.

[00:29:09] Speaker 04:
And again, accommodation, whether the student is 17 or 7.

[00:29:18] Speaker 04:
The policy requires that accommodation, whether the student is 7, or I believe in this case 11 or 12, I might have that wrong, or 17, yes?

[00:29:29] Speaker 03:
Subject to the review of an adult surrogate, yes, Your Honor.

[00:29:32] Speaker 04:
Subject to the compelling evidence that disclosure is necessary for the well-being of the child.

[00:29:39] Speaker 03:
Correct, and obviously the child's age would be a factor in coming to that determination or not.

[00:29:46] Speaker 01:
Counsel, my question is why is it, I think it has to be your position that they haven't even plausibly alleged that this is treatment.

[00:29:54] Speaker 03:
That's correct.

[00:29:56] Speaker 03:
Based upon Karnosky, based upon Grimm, it is not.

[00:29:58] Speaker 03:
And right there, you don't get to step two regarding notice because they fail at step one.

[00:30:06] Speaker 03:
This is not treatment.

[00:30:07] Speaker 03:
We know what treatment is.

[00:30:09] Speaker 03:
The Shanks case out of the Seventh Circuit tells us what treatment is.

[00:30:13] Speaker 03:
Treatment is an act of a third person attempting to cure a malady.

[00:30:19] Speaker 03:
And we know from Grimm and we know from Karnosky that simply being transgender in and of itself is not a malady, it's not an ailment.

[00:30:28] Speaker 03:
What is an ailment, what is a malady is gender dysphoria.

[00:30:33] Speaker 03:
What gender dysphoria is that some, not all, but some transgender persons suffer emotional distress due to the non-congruence between their gender identity and their sex assigned at birth.

[00:30:48] Speaker 03:
The reason that difference between being transgender and gender dysphoria is critical is because of what triggers AR-5145.3.

[00:30:58] Speaker 03:
AR-5145.3 is triggered by someone simply being transgender.

[00:31:06] Speaker 03:
It is not triggered by someone having gender dysphoria.

[00:31:10] Speaker 03:
It is triggered by something that is not a malady.

[00:31:13] Speaker 03:
It is triggered by being transgender.

[00:31:18] Speaker 03:
Now, if AR 5145.3, if it was triggered by someone with gender dysphoria, if the regulation says something to the effect of

[00:31:27] Speaker 03:
If you have gender dysphoria, then we will accept your pronouns.

[00:31:32] Speaker 03:
Well, then maybe there's an argument that it's treatment, but that's not what the case is.

[00:31:36] Speaker 03:
What 5145.3 is, is if you are transgender, period, regardless of any ailment, we will accept your pronouns, we will accept your names.

[00:31:45] Speaker 03:
And because the triggering event is not an ailment, it's not an intent to remedy a malady, there is no treatment.

[00:31:53] Speaker 03:
And you don't even get to the step of notice because there's no treatment in and of itself.

[00:31:58] Speaker 01:
So setting aside the treatment label or conclusion, they've alleged that having this secret kept from the parent can drive a wedge between the parent-child relationship.

[00:32:11] Speaker 01:
And you think that is not plausibly alleged here.

[00:32:14] Speaker 03:
No, Your Honor, because that's the decision of the student.

[00:32:17] Speaker 03:
It's the student who has decided to keep this secret from their parent.

[00:32:22] Speaker 03:
What AR 5145.3 does is simply maintain the status quo, a status quo that has been created by the student.

[00:32:30] Speaker 04:
Oh, wait, wait, wait.

[00:32:30] Speaker 04:
I'm sorry.

[00:32:31] Speaker 04:
I need to push back on that a minute as to maintain the status quo.

[00:32:37] Speaker 04:
It may well maintain the status quo of the parent knowing

[00:32:42] Speaker 04:
but it doesn't maintain the status quo of how the parent's child is going to be treated at school.

[00:32:50] Speaker 04:
And in your view, the latter is irrelevant to the constitutional claim?

[00:32:57] Speaker 03:
In terms of the associate, I mean, so in terms of, and this is what I understand Judge Christian's question to be, and I apologize if I misunderstood it, but what I understood her question to be is, is does keeping the secret, does the school keeping the secret drive a wedge?

[00:33:13] Speaker 03:
Does it then somehow affect the relationship between the child and the parent?

[00:33:19] Speaker 03:
and it's the district's position that maintaining the status quo does not intrude upon, does not affect the parent-child relationship because it's the child who has made the decision to keep the secret.

[00:33:31] Speaker 03:
It is not the district who has made that decision.

[00:33:33] Speaker 03:
The district is simply maintaining the status quo.

[00:33:36] Speaker 03:
It's up to the child to decide whether or not they want to diverge that private confidential information to their parent.

[00:33:43] Speaker 04:
But again, in your view,

[00:33:48] Speaker 04:
in the district's view, the status quo is simply the parent's knowledge of the child's position.

[00:33:59] Speaker 04:
The status quo is not now everybody at the school, all of the teachers are going to be addressing the child by their preferred pronouns.

[00:34:09] Speaker 04:
That's not changing the status quo in a constitutionally relevant sense vis-a-vis the parent's constitutional rights.

[00:34:18] Speaker 03:
that that would be accurate, Your Honor, because the student, as we put in our briefing, has an informational right to privacy.

[00:34:26] Speaker 03:
And we also know from the non-case, which is based upon United States Supreme Court precedent, it is the student who gets to choose with whom they share that private information with.

[00:34:38] Speaker 03:
A student has the right to share their transgender status with the school and the people of the school, while at the same time maintaining the secrecy of that information from their parents

[00:34:48] Speaker 03:
and from the public at large.

[00:34:50] Speaker 03:
And that is based upon jurisprudence from the United States Supreme Court with regard to criminal rap sheep and whatnot.

[00:34:57] Speaker 03:
Just because a section or a small sliver of society happens to know this confidential information doesn't take away the right from that person to continue to withhold

[00:35:10] Speaker 04:
And again, and I apologize for repeating my question, but I want to tie it to the point you just made, that your point in the district's view is true whether the child is 6, 11, or 17.

[00:35:30] Speaker 03:
That would be correct, Ron.

[00:35:31] Speaker 03:
Again, the decision of the child is subject to an adult surrogate review.

[00:35:37] Speaker 03:
It's not that a six-year-old is simply coming up and saying, this is what I want to do, and the district, without reviewing the situation, says okay.

[00:35:46] Speaker 03:
It's just like in the abortion context where when a minor has decided they want an abortion, it's subject to the adult surrogate.

[00:35:53] Speaker 03:
It's subject to the review of the doctor.

[00:35:55] Speaker 03:
In this case, it would be subject to the review of the district personnel to decide if, in fact, maintaining the privacy of that information from the parents is in the best interest of the child or whether it would constitute potential harm to that child.

[00:36:09] Speaker 02:
Okay.

[00:36:09] Speaker 02:
I'd like to ask a few questions related to the fundamental right aspect and the standards that we apply to this.

[00:36:19] Speaker 02:
First of all, do you agree that we should be analyzing the substantive due process and First Amendment claims under the fundamental rights standard as opposed to shocks the conscience standard?

[00:36:34] Speaker 03:
I think the Ninth Circuit is clear in that you have to have both a fundamental right and a shock to the conscience.

[00:36:43] Speaker 03:
That's the both language that we cite in our briefing.

[00:36:49] Speaker 03:
You have to have both.

[00:36:50] Speaker 03:
One, you have to have

[00:36:51] Speaker 03:
a government action that touches upon a fundamental right, but also in addition to that, that the action of the executive has to, in addition to that, shock the conscience.

[00:37:02] Speaker 03:
So I think both analyses come into play here.

[00:37:05] Speaker 02:
Well, if we look at the fundamental, if we assume that Gino has a fundamental right, parental right to

[00:37:15] Speaker 02:
know to be notified by the school.

[00:37:19] Speaker 02:
What's the substantial government interest that exists to override that right?

[00:37:27] Speaker 03:
Well, Your Honor, I would push back on the parental right for notification because when you look at Pierce, when you look at Meyer, when you look at those cases that have developed the parental right and what the scope of the parental right is, the United States Supreme Court laid it out in Truxall.

[00:37:45] Speaker 03:
The right of parents through the due process clause is limited to quote unquote making decisions.

[00:37:52] Speaker 03:
It's limited to the decision making process.

[00:37:55] Speaker 03:
We could look at it that way.

[00:38:01] Speaker 02:
We could look at it that it should be the parent's right to decide whether their child is going to be referred to by different pronouns or the pronouns that the child desires or have access to alternative bathrooms.

[00:38:21] Speaker 02:
that it should be the parent that gets to decide to accommodate the child, not the school.

[00:38:27] Speaker 02:
So if we look at it that way, what's the government's substantial interest in withholding the information and withholding that decision-making from the parent?

[00:38:39] Speaker 03:
Well, again, the interest of the government is accommodating the informational privacy rights of the child, where the child says, this is my constitutionally protected information, and I want to maintain it private from third parties, including my parents.

[00:38:58] Speaker 03:
It is the interest of the state to maintain that privacy, because there's two sides of the coin to the right of privacy.

[00:39:05] Speaker 03:
One is, and they talk about this in Baladi, but one is the right not to have the state snooping into your own business.

[00:39:12] Speaker 03:
That's one side of the coin.

[00:39:14] Speaker 03:
The other side of the coin is when the state has private information through legitimate means, has private information of a citizen,

[00:39:23] Speaker 03:
That citizen has the right to make sure that the state maintains the confidence of that information and does not divulge that information to third parties without their consent.

[00:39:33] Speaker 03:
So it is that right of privacy and maintaining the privacy rights of its students concerning their transgender status, that is the interest of the state in maintaining its privacy.

[00:39:52] Speaker 03:
Having said that, I would like to finish my time with focusing on what is the scope of parental rights as set forth by this court in

[00:40:05] Speaker 03:
infields as well as by the Supreme Court because, again, there's a difference between the right to decide, the right to make decisions, which is what the United States Supreme Court and this Court has recognized, and this additional right which appellants are now seeking, and that is the right to, after making their choice, after making their decision,

[00:40:24] Speaker 03:
to then be able to go to the state and compel state action to accommodate those choices.

[00:40:31] Speaker 03:
And I use the word accommodate because that's the word that this court used in the Fields case.

[00:40:36] Speaker 03:
And there's a dichotomy between the actual right to decide and the would-be right to accommodation, which this court and the United States Supreme Court has rejected time and time again over the past 20 years.

[00:40:48] Speaker 03:
For example, in the Fields case, what you had was you had a group of parents say, hey, we have decided, based upon our right to decide, we've raised our children in a universe where sex doesn't exist.

[00:41:05] Speaker 03:
We don't talk about sex, sex isn't a topic, et cetera.

[00:41:07] Speaker 03:
And because of that, because we've made that right to decide, we should additionally

[00:41:13] Speaker 03:
have the right to compel the state in how it educates our students and making sure that they don't educate them regarding sex because otherwise that would be undermining our right of choice and this court in field said no that you do not get that second right you have the right to decide but you do not have the right to state accommodation specifically this court said

[00:41:38] Speaker 03:
that the parental right, quote unquote, does not extend beyond the threshold of the school door.

[00:41:45] Speaker 03:
And the court has repeated that line over and over again, specifically in Parents for Privacy v. Barr, California Parents v. Torlakson, and a host of other cases, every time repeating that sentence, that quote unquote does not extend beyond the threshold of the school door.

[00:42:02] Speaker 03:
And that is, I mean, so what this case is,

[00:42:05] Speaker 03:
What this case is where appellant, again, as other parents have done before, in seeking a second right of accommodation, in this case, compelling the state to disclose private information to them,

[00:42:20] Speaker 03:
This is no different than the Fields case, and this is no different than the Parents for Privacy case, and this is no different than the California Parents case.

[00:42:28] Speaker 03:
There is no right to state compelled accommodation.

[00:42:31] Speaker 03:
The parental right is limited only in the educational context.

[00:42:36] Speaker 03:
The parental right is limited only

[00:42:38] Speaker 03:
to the decision of whether or not to send their children to public or private school.

[00:42:42] Speaker 03:
And the Supreme Court has said as much.

[00:42:45] Speaker 03:
In the Runyon case recently, it talked about Pierce.

[00:42:48] Speaker 03:
It said Pierce is limited to its facts and no more.

[00:42:52] Speaker 03:
That's a quote.

[00:42:52] Speaker 03:
And no more.

[00:42:54] Speaker 03:
There is no right to accommodation.

[00:42:57] Speaker 03:
There is no right to compel the state to act to accommodate parental decisions.

[00:43:01] Speaker 03:
It's only the right to decide and nothing else.

[00:43:04] Speaker 03:
And having said that, I see I only have approximately a minute left.

[00:43:09] Speaker 03:
If the court has any questions, I'd be happy to answer them.

[00:43:12] Speaker 03:
Otherwise, we will submit.

[00:43:15] Speaker 02:
Any further questions?

[00:43:16] Speaker 02:
No.

[00:43:18] Speaker 02:
Okay.

[00:43:18] Speaker 02:
Thank you, counsel.

[00:43:19] Speaker 02:
Thank you, Your Honor.

[00:43:21] Speaker 02:
We'll hear from Ms.

[00:43:24] Speaker 02:
Dalby.

[00:43:33] Speaker 00:
Good morning, Your Honors.

[00:43:34] Speaker 00:
Julie Viroff for the State of California.

[00:43:36] Speaker 00:
Thank you for allowing us to participate in today's argument.

[00:43:40] Speaker 00:
The state is here because we believe it's critical that schools be able to create safe and supportive learning environments for all our students, including transgender and gender nonconforming students.

[00:43:49] Speaker 00:
This court recognized the importance of that interest in Parents for Privacy, and it also made clear in Parents for Privacy that while parents have a substantive due process right to choose their child's educational form,

[00:43:59] Speaker 00:
They do not have a due process right to override their chosen school's policies, administration, or curriculum.

[00:44:04] Speaker 00:
Plaintiff ignores that precedent.

[00:44:06] Speaker 00:
She claims that substantive due process empowers parents to compel schools to abandon their anti-discrimination objectives and to harm transgender students by forcibly outing and misgendering them.

[00:44:16] Speaker 00:
This court should affirm the dismissal of plaintiff's claims.

[00:44:19] Speaker 00:
I welcome the court's questions.

[00:44:22] Speaker 01:
It just seems to me, and this is a refrain that I've been advancing I think all morning,

[00:44:27] Speaker 01:
that both sides are alleging that harms can result to the child either way.

[00:44:32] Speaker 01:
And the policy is not absolute, but it is also not neutral.

[00:44:36] Speaker 01:
And we don't have any findings about whether the evidence, we have a lot of amicus briefs from a lot of professionals in this area.

[00:44:45] Speaker 01:
Of course, we're just generalists, just judges.

[00:44:47] Speaker 01:
And I don't know whether any of those asserted harms are supported by the record.

[00:44:53] Speaker 00:
This court decided parents for privacy and fields in motion to dismiss postures, and it can do the same here.

[00:44:58] Speaker 00:
Because the legal question is, what is the scope of the substantive due process right when it comes to parents in the context of schools?

[00:45:05] Speaker 00:
And as a general matter, substantive due process is concerned with unjustified compulsion, coercion, prohibition by the state in a way that materially interferes with the parent-child relationship.

[00:45:14] Speaker 00:
We don't have any of that here.

[00:45:16] Speaker 00:
This court has rejected efforts to constitutionalize line drawing in this arena, and instead it's articulated a clear rule, which is that parents do not have a due process right to override their school's chosen process.

[00:45:26] Speaker 04:
And again, so the state of California's position is that with regard to six-year-old children, that unless they give their written consent to their parents knowing the gender they

[00:45:39] Speaker 04:
would prefer to be called by and unless the school finds that overriding their concern would be, there's compelling interest that it's contrary to their physical or mental well-being.

[00:45:52] Speaker 04:
The parent of that six-year-old has no right to know that the school has directed everyone in the school to identify the child by their chosen gender.

[00:46:01] Speaker 00:
I appreciate your honor's concern, and I have two responses.

[00:46:04] Speaker 00:
The first is that Fields is instructive when it comes to the concern about age.

[00:46:08] Speaker 00:
There, this court considered a school's decision to administer a survey about sex and sexuality to first graders, third graders, and fifth graders.

[00:46:16] Speaker 00:
And this court said, whatever the wisdom of that school's choice, there was no fundamental parental rights implicated.

[00:46:22] Speaker 00:
And moreover, to constitutionalize line drawing based on the nature of the parent's objection,

[00:46:27] Speaker 00:
would be unadministerable.

[00:46:28] Speaker 00:
Second, I'll note that we don't have any allegations here about this policy being applied to very young children, to kindergartners, and certainly doing so within- You don't dispute that's what the policy says, though.

[00:46:39] Speaker 04:
You agree with your colleague who argued just before you that that's what the policy provides.

[00:46:45] Speaker 00:
The policy does apply to all students in the district, but to the extent that policymakers are concerned about age, they could draw another line, and they haven't done so here.

[00:46:53] Speaker 04:
Or they could write a more neutral policy.

[00:46:57] Speaker 04:
that simply says, for example, in deciding they're gonna take into account the best interests of the child as opposed to there is a presumption that without the child's written consent, it's going to remain undisclosed to the parent absent compelling evidence that this is harming the child's physical or mental wellbeing.

[00:47:20] Speaker 00:
policymakers could choose to approach it that way.

[00:47:23] Speaker 00:
I'll note that the way that this policy is designed is consistent with educational best practice as teachers, school psychologists, school social workers, and nurses all told this court in their amicus brief.

[00:47:34] Speaker 04:
But as Judge Kristen pointed out, we don't have evidence on that because this was the 12b6 stage.

[00:47:41] Speaker 00:
That's right.

[00:47:41] Speaker 00:
But again, at the 12b6 stage, this case can be resolved as a matter of law, both because of the parents for privacy

[00:47:48] Speaker 00:
clear line about the nature of the sensitive due process, right?

[00:47:52] Speaker 00:
And if I may, I also want to address the medical treatment issue and why this court can resolve that question as a matter of law.

[00:47:58] Speaker 00:
It's clear as a matter of law and incontrovertible fact that respecting a transgender person's name and pronouns is not medical treatment, giving rise to a submissive due process claim.

[00:48:08] Speaker 00:
And should there be any doubt on that, this court could look to Tingley versus Ferguson, where the court determined that conversion therapy was a form of medical treatment, where the state regulated it as part of the practice of medicine, and where this court defined medical treatment as what licensed healthcare professionals provide their patients in the course of diagnosis and treatment.

[00:48:24] Speaker 00:
Here, of course, the state does not regulate respecting someone's name and pronouns as a form of medical treatment.

[00:48:28] Speaker 00:
The court can also look at all of the substantive due process cases, finding that a form of medical care gave rise to a parental interest.

[00:48:36] Speaker 00:
I'm sorry, I see my time has expired.

[00:48:37] Speaker 00:
May I finish briefly?

[00:48:38] Speaker 02:
Yes, of course.

[00:48:40] Speaker 00:
And in those cases, the court was focused on inpatient hospitalization for mental illness, medical examinations of children in protective custody, spinal taps, blood draws to diagnose disease.

[00:48:50] Speaker 00:
All that is extremely far afield from respecting someone's name and pronouns, which anyone can do and people do every day as a matter of civic decency and respect.

[00:48:58] Speaker 00:
Thank you very much.

[00:48:59] Speaker 00:
We ask that the court affirm.

[00:49:00] Speaker 02:
Thank you.

[00:49:04] Speaker 02:
Mr. Dixon.

[00:49:11] Speaker 05:
I'll start where the state ended off.

[00:49:13] Speaker 05:
The state uses the phrase medical treatment.

[00:49:15] Speaker 05:
This is the same type of hand waving that they made in their brief.

[00:49:20] Speaker 05:
We don't contend that this is medical treatment.

[00:49:23] Speaker 05:
We contend this is psychological treatment.

[00:49:26] Speaker 05:
Healthcare treatment, whether it is quote unquote medical or psychological, deserves respect and the parental right is triggered.

[00:49:33] Speaker 05:
Medical would be things like a shot or a pill.

[00:49:36] Speaker 05:
Psychological is obviously treatment on the psyche.

[00:49:41] Speaker 05:
The district invokes the line of Fields 1, saying that parental rights end at the threshold of the schoolhouse door.

[00:49:50] Speaker 05:
I would commend your honors to Fields 2, which is the decision that amended Fields 1 on a petition for rehearing, which explicitly removed that line from the decision.

[00:50:00] Speaker 05:
fields to has to be seen as rejecting the proposition that parental rights end at the threshold of the school door.

[00:50:07] Speaker 05:
And of course, that's the case if the school employees doctors to distribute adderall to students before class.

[00:50:13] Speaker 05:
That's obviously a constitutional violation despite the fact of being behind the school doors.

[00:50:18] Speaker 05:
I commend your honors and the shocks the conscience argument to footnote eight of Lewis against County of Sacramento.

[00:50:24] Speaker 05:
That footnote explains quite clearly that when we're challenging a policy like we are doing here, fundamental rights analysis, strict scrutiny analysis applies.

[00:50:32] Speaker 05:
Shocks to consciousness is only applicable to executive action, like in that case, an aggressive police chase.

[00:50:39] Speaker 05:
The district argues that a gendered

[00:50:41] Speaker 05:
dysphoria diagnosis is not required before socially transitioning is performed on children, and that is correct, but that makes it worse.

[00:50:49] Speaker 05:
They're performing treatment on children who don't need it.

[00:50:51] Speaker 05:
If you give a child a Tylenol, that doesn't stop becoming treatment simply because the child doesn't have a headache.

[00:50:57] Speaker 05:
The question is whether this has an impact on the child.

[00:51:00] Speaker 05:
Tylenol has the same effect on the child whether it has a headache,

[00:51:03] Speaker 05:
social transitioning has the same impact on the child, whether or not it has gender dysphoria.

[00:51:09] Speaker 05:
If there are no further questions, we'll submit.

[00:51:12] Speaker 02:
Thank you, Your Honor.