Mirabelli v. Bonta, Docket No. 25A810
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Tiny wording choices can change who gets a say, and when. That’s what this Supreme Court order is about: what schools can keep from parents, and what they must say out loud, when a student is transitioning at school. The Court said schools aren't able to keep information from parents about their child's gender transition and schools cannot override parental instructions on the name and pronoun to use with their child.
The Court said the parent plaintiffs are likely to win their claims tied to religious freedom and to parents’ rights under the Constitution. But the Court would not grant the same relief for the teacher plaintiffs.
The ruling was unsigned, and Justice Amy Coney Barrett wrote a separate opinion agreeing with the result. Justice Elena Kagan dissented, and Justice Ketanji Brown Jackson joined her.
Summary of the Case
It's one of those rare moments when the Supreme Court intervenes in the middle of an ongoing appeal, not after full briefing and oral argument, but through an emergency application to vacate a stay. Elizabeth Mirabelli and other California parents sued to challenge state education policies that, as administered, prevent schools from disclosing to parents information about their children's gender identity transitions at school and require schools to use students' preferred pronouns regardless of parental wishes. The District Court granted summary judgment for the parents and entered a permanent injunction. The Ninth Circuit stayed that injunction pending appeal. The parents then asked the Supreme Court to vacate the stay, and six Justices granted that request, but only as to the parents, not as to the teachers.
The case presented two constitutional theories. First, that the policies violate the Free Exercise Clause as applied to parents with sincere religious beliefs about gender. Second, that the policies violate the Due Process Clause of the Fourteenth Amendment by excluding parents from consequential decisions about their children's mental health. This second theory becomes crucial because it applies to all objecting parents, not just those motivated by religion.
Arguments Made By Counsel
The official Supreme Court record provided here contains no oral argument summary. The Court resolved this application on an abbreviated schedule without live argument before the Justices, a procedural posture that Justice Kagan's dissent heavily criticizes. However, we can reconstruct the competing positions from the opinions themselves.
The parents' counsel emphasized two things. First, that California's policy operates as a blanket prohibition. School officials testified they cannot disclose information about gender transitions even when parents directly ask. Second, the plaintiffs' factual narratives are emotionally compelling. The Poe family's daughter attempted suicide. Her parents learned she had been presenting as a boy at school only from a hospital psychiatrist, not from school officials. Even after hospitalization, when the child moved schools, administrators continued withholding information and using the chosen identity against parental instruction.
The state's counsel, represented by California's Attorney General Rob Bonta, grounded its defense in student safety and privacy. The Ninth Circuit, which stayed the injunction, appeared sympathetic to this argument, suggesting that a blanket parental notification policy might expose vulnerable transgender students to abuse by unsupportive parents. The state also raised structural objections: the class certification was insufficiently rigorous, the injunction was overbroad, and some class members lacked standing because they weren't actually injured by the policy.
Opinion of the Court
The per curiam majority, six Justices, granted the application as to the parents only, meaning the injunction requiring parental disclosure and respect for parental directives on names and pronouns can take effect while the Ninth Circuit continues its appeal.
On the merits, and this is important, the Court did not finally decide these cases. It instead applied a test for emergency relief, which has four factors: likelihood of success on the merits, irreparable harm, balance of equities, and public interest. A preliminary assessment suffices.
On the Free Exercise Claim, the majority reasoned that parents with sincere religious beliefs about sex and gender are likely to succeed. California's policies substantially interfere with the right of parents to guide the religious development of their children, according to the most recent precedent expanding free exercise protections. Importantly, the Court analogized that the intrusion here, unconsented facilitation of social gender transition, exceeds what it found sufficient in a recent case involving the mere presence of LGBTQ storybooks in curriculum. The state's compelling interests in student safety and privacy don't survive strict scrutiny because they cut out the primary protectors of children's best interests: their parents. Moreover, the Court noted that a narrower policy, allowing exemptions while still protecting children from abusive parents through enforcement of existing child abuse laws, would advance the state's interests with less burden on religious liberty.
On the Substantive Due Process Claim, here the Court invoked bedrock precedents establishing that parents, not the state, have primary authority over the upbringing and education of children. The Court drew a crucial distinction: gender dysphoria is a mental health condition, and prior precedent specifically protected parental participation in decisions about children's mental health. California's policy conceals this information from parents and facilitates social transition during school hours, thereby excluding parents from participation in a consequential mental health decision. This is likely unconstitutional.
On Irreparable Harm, the majority treated the denial of asserted constitutional rights during a protracted appellate process as irreparable by definition.
On Balance of Equities, the Court held that child safety actually favors the parents' position because fit parents advancing their judgment promotes wellbeing, while the state retains its ability to protect children from unfit parents through child welfare law and custody removal.
Separate Opinions
Justice Barrett's Concurrence, joined by Chief Justice Roberts and Justice Kavanaugh, agrees with the result but adds a methodological clarification about substantive due process, a doctrine generating significant contemporary controversy on this Court.
Barrett emphasizes that substantive due process, while controversial, is not newly invented. It requires rights to be deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty. The parental right to direct children's upbringing, and specifically to participate in mental health decisions, has been part of constitutional law for a century. This is not judicial overreach. It's straightforward application of existing precedent.
Critically, Barrett addresses Justice Kagan's implicit concern. How can the Court recognize parental rights here when it eliminated abortion rights in Dobbs based on the identical framework? The concurrence replies that Dobbs didn't repudiate substantive due process doctrine generally. Rather, it applied the test to conclude that abortion specifically is not deeply rooted in this Nation's history and tradition. That targeted elimination doesn't undermine the parental rights cases, which face no such challenge. No party disputes those precedents' continued validity.
Barrett also defends the Court's decision to accompany the stay vacation order with a substantive per curiam opinion rather than issuing a terse, reasoned judgment. In her view, the Ninth Circuit significantly misunderstood recent precedent, and brief correction serves efficiency. Moreover, because Justice Kagan raises the Dobbs tension, it would be unwise to issue an unreasoned order on the substantive due process claim.
Finally, she emphasizes that likely is the operative word. This is a preliminary merits assessment to inform the emergency relief question, not a conclusive resolution. The litigation continues in the Ninth Circuit and potentially here.
Justice Thomas and Justice Alito noted separately that they would grant the application in full, meaning they would vacate the stay as to the teachers as well. The per curiam denied relief for the teachers, perhaps on grounds that their claims differ from the parents' in doctrinally relevant ways.
Dissenting Opinions
Justice Kagan, joined by Justice Jackson, dissented, mounting a structural critique of how the Court handled this case rather than disagreeing with the ultimate merits assessment.
Her core grievance: This is precisely the kind of novel, high stakes issue the emergency docket was never designed to resolve. The ordinary appellate process had barely begun. Only the district court had ruled on the merits. The Court received minimal briefing, held no oral argument, conducted no conference deliberation, and decided the matter in weeks. Yet it issued a per curiam opinion that, despite the word likely sprinkled throughout, will inevitably be read by lower courts, state officials, and the public as conclusively resolving the dispute.
Kagan notes several procedural irregularities. First, the Ninth Circuit's en banc process was already underway when the plaintiffs simultaneously filed a motion there and an application here. Sound practice would counsel waiting for the Ninth Circuit to complete its work before the Supreme Court jumps in. Second, and more galling to Kagan, a petition for certiorari raising essentially identical legal issues has been pending since November in a First Circuit case with the same policy structure. The Court could have granted it, heard full briefing, held oral arguments, deliberated properly, and issued a considered opinion come next fall. Instead, it chose the truncated emergency docket. Kagan notes approximately 40 cases raising similar due process and free exercise challenges to school policies are currently in the judicial pipeline, so the Court would not wait long if it did the work properly.
Critically, Kagan raises a tension the per curiam tries to finesse: the substantive due process problem. The Court derives its holding from parental rights rooted in substantive due process doctrine, yet this Court, particularly the majority coalition, has expressed deep skepticism toward substantive due process in recent years. Justice Thomas has called for overruling all substantive due process precedents. Justice Gorsuch criticized the judicial misuse of substantive due process. Justice Kavanaugh's Dobbs concurrence emphasized that the Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution.
The dissonance is stark. In Dobbs, the Court repudiated a woman's right to make consequential decisions about her own health, abortion, based on it not being deeply rooted in American tradition.
The Tension Between Parental Rights and Student Privacy
This case sits at the intersection of two deeply held values: the right of parents to be involved in their children's lives, and the interest in protecting vulnerable students who may not be safe at home. The Court sided with the parents, finding that California's blanket policy of withholding information about a child's gender transition likely violates both religious freedom and the constitutional right of parents to direct their children's upbringing. But the word "likely" is doing a lot of work here. This is preliminary relief, not a final answer.
The dissent's objection isn't really about who should win. It's about how the Court chose to decide. By resolving this on the emergency docket the majority issued what looks like a major constitutional ruling through a process designed for urgent but narrow interventions. With dozens of similar cases working through the courts, the question of whether schools can keep gender-transition information from parents was going to reach the Court eventually. The dissent says the Court should have let that process play out.
What makes this case hard is that both sides are trying to protect children. Parents argue they can't fulfill that role if schools are keeping secrets from them. The state argues that some children need protection from their own parents. The Court's answer, for now, is that fit parents are presumed to act in their children's best interests, and the state can use existing child welfare laws to handle the exceptions. The Ninth Circuit has a tenuous framework to consider their decision. Cases currently working their way through the court system now is signaling that the Supreme Court will have to further deliberate substantive due process again soon.