Opinion

Regino v. Staley

Court
District Court, E.D. California
Filed
Mar 9, 2023
Cited by
0 cases
Authority
More cited than 18.3%

The opinion

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 AURORA REGINO, No. 2:23-cv-00032-JAM-DMC

12 Plaintiff,

13 v. ORDER DENYING PLAINTIFF’S MOTION

FOR PRELIMINARY INJUNCTION

14 KELLY STALEY, ET AL.,

15 Defendants.

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17 Aurora Regino (“Plaintiff”) seeks a preliminary injunction

18 against Chico Unified School District Superintendent Kelly Staley

19 and school board members Caitlin Dalby, Rebecca Konkin, Tom

20 Lando, Eileen Robinson, and Matt Tennis (“Defendants”) in their

21 official capacities. Plaintiff asks this Court to enjoin

22 enforcement of school district regulation AR 5145.3, which

23 broadly covers nondiscrimination and harassment as it applies to

24 the school district’s transgender students. See Mot. for

25 Preliminary Injunction (“MPI”), ECF No. 18. Defendants oppose

26 the motion. See Opp’n, ECF No. 21. Plaintiff replied. See

27 Reply, ECF No. 27.

28 For the reasons set forth below, the Court DENIES

1 Plaintiff’s motion.

2 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

3 Plaintiff contends that the Chico United School District, in

4 which both of her children, A.S. and C.S., are students, operates

5 a policy, AR 5145.3 (the “Regulation”), that (1) permits school

6 personnel to socially transition students expressing a

7 transgender identity and (2) prohibits school personnel from

8 informing a student’s parents of this change unless the student

9 expressly authorizes them to do so. MPI at 5-6. During the

10 2021-22 school year, Plaintiff’s child, A.S., then a student at

11 Sierra View Elementary School, expressed feelings of gender

12 dysphoria to her school counselor, Mandi Robinson, specifically

13 that she identified as a boy. Id. at 6. After a couple of

14 subsequent counseling sessions, Plaintiff alleges that A.S.’s

15 counselor began socially transitioning A.S. by informing her

16 teachers that she was to be called by her new name and referred

17 to by male pronouns. Id. at 7. School personnel did not

18 disclose these developments to Plaintiff; Plaintiff further

19 alleges that Robinson actively discouraged A.S. from informing

20 Plaintiff and instead advised her to disclose her new identity to

21 other family members first. Id. Robinson also did not suggest

22 that A.S. discuss her gender dysphoria with a medical

23 professional. Id. On April 8, 2022, A.S. informed her

24 grandmother of her new gender identity, who then informed

25 Plaintiff the same day. Id. Plaintiff then spent the following

26 months in contact with school district personnel to express her

27 concerns about the Regulation and advocated for the school

28 district to change it. Id. at 8. Plaintiff alleges that

1 district personnel, including Defendants, dismissed her concerns

2 and stated that state law mandated the Regulation. Id. at 8.

3 A.S. currently does not express feelings of gender dysphoria and

4 now identifies as a girl again and is currently in counseling for

5 depression and anxiety. Id.

6 On January 6, 2023, Plaintiff filed her complaint against

7 Defendants alleging four causes of action under 42 U.S.C. § 1983:

8 two facial challenges to the Regulation under substantive and

9 procedural due process; and two as-applied challenges to the

10 Regulation under substantive and procedural due process. See

11 Compl. A couple of weeks later, Plaintiff filed the operative

12 motion for preliminary injunction seeking to enjoin Defendants

13 and all district employees from: (1) socially transitioning

14 current students without obtaining informed consent from the

15 students’ parents or guardians; (2) not obtaining informed

16 consent from the parents or guardians of all current students who

17 have previously been socially transitioned or are currently being

18 socially transitioned; (3) socially transitioning Plaintiff’s

19 children without her informed consent; and (4) not obtaining

20 Plaintiff’s informed consent if her daughters have been socially

21 transitioned in the past or are still being socially

22 transitioned. See MPI.

23 II. EVIDENTIARY ISSUES

24 A. Judicial Notice

25 Defendants request the Court take judicial notice of three

26 exhibits. See Request for Judicial Notice, ECF No. 21. Exhibit

27 A is a publication by the California Department of Education

28 outlining the frequently asked questions regarding California’s

1 School Success and Opportunity Act (AB 1266), Exhibit B is a

2 publication by the California School Boards Association detailing

3 a sample anti-harassment regulation, and Exhibit C is Chico

4 Unified School District’s Administrative Regulation 5145.3 on

5 antidiscrimination and harassment. Id. at 2. All three exhibits

6 constitute government records and are, therefore, proper subjects

7 for judicial notice. Anderson v. Holder, 673 F.3d 1089, 1094

8 n. 1 (9th Cir. 2012); Daniels-Hall v. National Educ. Ass’n., 629

9 F.3d 992, 998 (9th Cir. 2010).

10 B. Expert Affidavit

11 Defendants object to Plaintiff’s submission of Dr. Stephen

12 B. Levine’s affidavit in consideration of her motion for

13 preliminary injunction. See Defendants’ Objections to Expert

14 Affidavit, ECF No. 21. Plaintiff responds that Dr. Levin’s

15 affidavit qualifies as an expert affidavit under Federal Rule of

16 Evidence (FRE) 702 and that Defendants’ objection is premature.

17 See Plaintiff’s Response to Defendants’ Objections to Expert

18 Affidavit, ECF No. 27. The Court agrees that the affidavit is

19 admissible under FRE 702.

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21 III. OPINION

22 A. Legal Standard

23 A preliminary injunction is an “extraordinary remedy” that a

24 court may award only “upon a clear showing that the petitioner is

25 entitled to such relief.” Winter v. Natural Resources Defense

26 Counsel, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary

27 injunction, a petitioner must demonstrate that: (1) they will

28 likely succeed on the merits, (2) they will suffer irreparable

1 harm in the absence of preliminary relief, (3) the balance of

2 equities tips in their favor, and (4) an injunction is in the

3 public interest. Boardman v. Pacific Seafood Group, 822 F.3d

4 1011, 1020 (9th Cir. 2016) (quoting Winter, 555 U.S. at 20).

5 Post-Winter, the Ninth Circuit kept a “sliding scale

6 approach” to preliminary injunctions known as the “serious

7 questions test.” Alliance for the Wild Rockies v. Cottrell, 632

8 F.3d 1127, 1131 (9th Cir. 2011). Under this approach, a

9 “likelihood” of success is not an absolute requirement. Id. at

10 1132. “Rather, serious questions going to the merits and a

11 hardship balance that tips sharply toward the [petitioner] can

12 support issuance of an injunction, assuming the other two

13 elements of the Winter test are also met.” Drakes Bay Oyster Co.

14 v. Jewell, 747 F.3d 1073, 1085 (9th Cir. 2014).

15 B. Analysis

16 1. Motion for Preliminary Injunction

17 a. Factor One: Success on the Merits

18 Plaintiff argues that she is highly likely to succeed on the

19 merits of her claims because AR 5145.3 violates her substantive

20 due process rights as a parent to A.S. as well as her procedural

21 due process rights. Plaintiff claims that she has a

22 constitutional right to direct the upbringing and education of

23 her children, citing the Supreme Court findings in Parham v.

24 J.R., 442 U.S. 584, 602 (1979) that “parents possess what a child

25 lacks in maturity, experience and capacity for judgement” and the

26 “natural bonds of affection lead parents to act in the best

27 interests of their children.” MPI at 9. Plaintiff claims that

28 parental authority extends to decisions regarding the health,

1 well-being, and medical treatment of their children; while some

2 parents do not act in the best interest of their children in

3 these areas, Plaintiff argues that it would be unfair for

4 Defendants to completely supersede all parents’ authority with

5 respect to handling gender dysphoria and expression in their

6 children. Id. at 10. Plaintiff acknowledges that parents do not

7 have a right to dictate the curriculum that is taught to their

8 children in schools but argues that general school policies are

9 subject to judicial review and cannot supersede parental rights.

10 Id. at 10-11.

11 Plaintiff identifies four ways in which the Regulation

12 violates her substantive parental rights: (1) it interferes with

13 her right to control the important decisions in her children’s

14 lives; (2) it interferes with her right to control the health,

15 well-being, and medical treatment of her children; (3) it

16 facilitates students being provided substandard and unethical

17 medical care; and (4) it goes against the presumptions of

18 parental fitness and affection. Id. at 11-15. Plaintiff further

19 claims that the Regulation does not satisfy strict scrutiny

20 because Defendants cannot demonstrate that student privacy or

21 anti-transgender discrimination are compelling government

22 interests; additionally, the Regulation does not require school

23 personnel to have evidence of parental abuse against a student’s

24 transgender identity, so parents are denied information based

25 solely on a student’s opinion and not on whether disclosure

26 actually poses a risk to the student’s safety. Id. at 15-16.

27 The Regulation also lacks a lower age limit, so children as young

28 as five years old could be subjected to social transitioning

1 without parental knowledge or consent, which Plaintiff argues

2 does not conform with narrow tailoring under strict scrutiny.

3 Id. at 17.

4 Plaintiff also argues that the Policy is procedurally

5 defective because it interferes with parental rights without

6 requiring the state to conduct a thorough investigation, provide

7 notice to parents, or give parents the opportunity to be heard.

8 Id.

9 As for Plaintiff’s substantive due process claims,

10 Defendants argue that students have a privacy right concerning

11 their personal sexual information and that Plaintiff has no

12 legally cognizable right that has been violated; Plaintiff is

13 simply attempting to dictate whether her child and other children

14 are allowed to express their preferred gender identities at

15 school. Opp’n at 14, 19. Defendants refer to a recent district

16 court decision out of Maryland that found that minor students

17 have a privacy right to maintain their gender identity a secret

18 from their parents. Id. at 14-15 (citing John & Jane Parents 1

19 v. Montgomery Cnty. Bd. of Educ., 2022 U.S. Dist. LEXIS 149021

20 (D. Md. Aug. 18, 2022)). Defendants distinguish the cases cited

21 by Plaintiff, stating that they mainly cover abortion,

22 involuntary separations, or government institutions forcing

23 medically invasive procedures onto minors without parental

24 consent; Defendants argue that none of them are applicable to the

25 circumstances of the instant case. Id. at 15-17. Defendants

26 then contend that the instant case is analogous to cases

27 concerning the lack of parental rights regarding the direction of

28 a child’s curriculum at school, arguing that Plaintiff cannot

1 contest the Regulation because she decided to send her children

2 to schools in the district, so she is subject to the district’s

3 regulations. Id. 18-19. Defendants also argue that Plaintiff

4 cannot establish that Defendants have committed any conduct that

5 “shocks the conscience” of the Court because the Regulation

6 complies with state law. Id. at 19.

7 As for Plaintiff’s procedural due process claims, Defendants

8 again argue that Plaintiff has no cognizable right that has been

9 violated by Defendants. Id. at 19-20. Therefore, these claims

10 must fail as well. Id.

11 The Court finds that Plaintiff has failed to demonstrate a

12 likelihood of success on the merits for her claims. The Court

13 first finds that a determination on Plaintiff’s as-applied

14 challenges to the Regulation are premature absent more concrete

15 factual allegations and, thus, cannot satisfy the first Winter

16 factor. As for Plaintiff’s facial challenges, to establish a

17 substantive due process claim under § 1983, a plaintiff must

18 allege that (1) a federal constitutional right was violated and

19 (2) the alleged violation was committed by a person acting under

20 the color of state law. Long v. Cnty. of Los Angeles, 442 F.3d

21 1178, 1185 (9th Cir. 2006). To establish a procedural due

22 process claim, a plaintiff must allege that (1) they were

23 deprived of a federal constitutional right and (2) they were

24 denied adequate procedural protections. Brewster v. Bd. of Educ.

25 of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998).

26 The Supreme Court requires a “careful description of the asserted

27 liberty interest” that has been violated. Washington v.

28 Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2268, 138 L. Ed.

1 2d 772 (1997). In the instant case, Plaintiff has failed to

2 provide any controlling authority to suggest that the established

3 right of parents to direct the upbringing of their children

4 extends to the circumstances of this case. While the cases cited

5 by Plaintiff refer to the generally held presumptions that

6 parents act in the best interest of children and help compensate

7 for their children’s lack of maturity and experience when dealing

8 with intimate and health related decisions, as noted above,

9 Plaintiff’s cases are restricted to abortion, commitments to

10 mental institutions, involuntary separation by the state, and

11 forced, physically invasive testing by the state on children

12 without parental consent. None of the cases cited by Plaintiff

13 opine on whether the state has an affirmative duty to inform

14 parents of their child’s transgender identity nor whether the

15 state must obtain parental consent before socially transitioning

16 a transgender child. In the absence of the requisite legal and

17 statutory support for Plaintiff’s contention that she has a

18 constitutional right that was violated, Plaintiff cannot

19 establish a likelihood of success on the merits for her facial

20 substantive or procedural due process claims.

21 However, the Court notes the novel nature of Plaintiff’s

22 claims and finds that Plaintiff has raised serious questions that

23 go to the merits of her case, namely what the bounds of the

24 parental right are to direct the upbringing of one’s children as

25 they pertain to a child’s gender identity and expression in

26 school. In fact, Plaintiff’s argument in this case has

27 implications beyond gender identity and expression and can be

28 applied to any personal aspect of a child’s expression in school

1 that a parent deems relevant to their health and well-being;

2 thus, sexual orientation, the expression of one’s racial, ethnic,

3 or cultural identity, and other topics subject to school policies

4 could be subject to legal scrutiny under Plaintiff’s theory. In

5 light of these serious questions, the Court will continue its

6 analysis of the remaining Winter factors with particular

7 consideration of whether the balance of equities tips sharply in

8 favor of Plaintiff, pursuant to Drakes Bay. 747 F.3d at 1085.

9 b. Factor Two: Irreparable Harm

10 Plaintiff argues that she has made a strong showing that

11 the Regulation violates her fundamental constitutional rights,

12 which is sufficient to establish irreparable injury. MPI at 19;

13 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citing

14 Elrod v. Burns, 427 U.S. 347, 373 (1976)). Plaintiff claims in

15 her reply brief that (1) any delay in her filing for her

16 preliminary injunction is negligible, (2) she is currently

17 experiencing emotional distress arising from her concern that the

18 school district will transition her children again without her

19 consent, and (3) she has demonstrated that there is a substantial

20 risk that the school district will apply the Regulation against

21 her children in the future, all of which also constitute

22 irreparable harm. Reply at 7-9.

23 Defendants first argue that Plaintiff cannot establish that

24 there is a need for speedy action to protect her rights because

25 she waited nine months to seek injunctive relief after learning

26 of the Regulation being applied to her daughter A.S. Opp’n at

27 20. Defendants also note that A.S. has returned to identifying

28 as a girl despite the continuance of the Regulation so there can

1 be no clear showing of a likelihood of irreparable harm. Id. at

2 20-21. Defendants also contend that Plaintiff has failed to

3 establish an immediate threat; it is not enough that A.S. has

4 been harmed in the past or that Plaintiff’s daughters continue to

5 reside in the school district for Plaintiff to meet her burden of

6 showing that injury is likely and immediate. Id. at 21-22.

7 The Court find’s Defendants’ argument persuasive. A party

8 “may not obtain a preliminary injunction unless they can show

9 that irreparable harm is likely to result in the absence of the

10 injunction.” Cottrell, 632 F. 3d, 1135. “Indeed, suffering

11 irreparable harm prior to a determination of the merits is

12 perhaps the single most important prerequisite for the issuance

13 of a preliminary injunction.” See Nutrition Distribution LLC v.

14 Lecheek Nutrition, Inc., No. CV 15-1322-MWF (MRWx), 2015 WL

15 12659907 (C.D. Cal. June 5, 2015) (internal citations omitted).

16 A party requesting a preliminary injunction must “generally show

17 reasonable diligence.” Benisek v. Lamone, 201 L. Ed. 2d 398, 138

18 S. Ct. 1942, 1944 (2018). A delay in seeking an injunction is

19 weighed against the moving party because an injunction is “sought

20 upon the theory that there is an urgent need for speedy action to

21 protect the [party’s] rights.” Lydo Enterprises, Inc. v. City of

22 Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984); see also Oakland

23 Trib., Inc. v. Chron. Pub. Co., 762 F.2d 1374, 1377 (9th Cir.

24 1985) (stating that a “long delay before seeking a preliminary

25 injunction implies a lack of urgency and irreparable harm”). The

26 Court notes Plaintiff’s nine-month delay in seeking injunctive

27 relief and finds that Plaintiff has demonstrated a lack of

28 urgency for action by the Court. The Court also finds that

1 Plaintiff is seeking to enjoin the school district to actively

2 seek the informed consent of parents to socially transition their

3 children who express a transgender identity. Thus, Plaintiff

4 seeks a mandatory injunction, which goes beyond a prohibitory

5 injunction’s maintenance of the status quo and instead compels

6 the district to take affirmative action. Doe v. Snyder, 28 F.4th

7 103, 111 (9th Cir. 2022). The standard for a mandatory

8 injunction is high; it will not be granted unless extreme or very

9 serious damage will result and is “not issued in doubtful cases

10 or where the injury complained of is capable of compensation in

11 damages.” Id. Plaintiff has not established a clear violation

12 of her constitutional rights, so she is not entitled to the

13 Court’s favor under this factor absent a showing that extreme or

14 very serious harm is certain to result absent the injunction.

15 Plaintiff has failed to do so in this case. Plaintiff’s general

16 claims of emotional distress and fear that the district will

17 apply the Regulation against her children are vague and do not

18 rise to the level of certain “extreme or very serious” harm that

19 is required for the imposition of a mandatory injunction. To the

20 contrary, Plaintiff has not demonstrated that there is any

21 immediate, irreparable harm that requires judicial intervention

22 at this time.

23 c. Factor Three: Balance of the Equities

24 Plaintiff argues that, in cases involving the deprivation of

25 constitutional rights, the balance of equities favors the

26 plaintiff unless the government can demonstrate that the

27 injunction will seriously hamper significant governmental

28 interests, which Defendants cannot do in this case. MPI at 19.

1 Plaintiff also contends that there is no burden on the school

2 district to comply with her proposed order because schools would

3 still be permitted to socially transition students so long as

4 they obtain parental consent. Id. at 19-20.

5 Defendants respond that the balance of equities favors the

6 school district because an injunction would force the district

7 to abandon enforcement of its established regulation and

8 jeopardize the privacy rights of its students. Opp’n at 22. On

9 the other hand, Plaintiff has no applicable constitutional right

10 that has been violated and any burden that Plaintiff feels about

11 not being aware of her daughter’s gender identity is not due to

12 the school district, but due to A.S.’s own decision on whether

13 to disclose it to Plaintiff. Id.

14 In exercising sound discretion, the Court “must balance the

15 competing claims of injury and consider the effect of granting

16 or withholding the requested relief,” paying “particular regard

17 for the public consequences in employing the extraordinary

18 remedy of injunction.” Winter, 555 U.S. at 24. The Court finds

19 that Defendants have demonstrated that the balance of equities

20 favors them, noting the burden on the school district to disrupt

21 the status quo and change its established regulation as well as

22 the potential burden on students who are currently benefiting

23 from the Regulation’s protections. Plaintiff has also failed to

24 make a showing that the balance of equities tips sharply in her

25 favor, as required under the serious questions test under Drakes

26 Bay, considering Plaintiff’s failure to establish a likelihood

27 of success on the merits. 747 F.3d at 1085.

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1 d. Factor Four: Public Interest

2 Plaintiff argues that it is always in the public interest to

3 prevent the violation of a party’s constitutional rights; in this

4 instance, Plaintiff has made a strong showing that the Regulation

5 violates her parental rights, so it is in the public interest to

6 grant her injunctive relief. MPI at 20. Plaintiff also claims

7 that the injunction will benefit all children and parents in the

8 district by protecting the intimate trust of the parent-child

9 relationship and reducing the psychological harm to children who

10 express different gender identities at home and school. Id.

11 Defendants argue that there is no public interest to promote

12 when parents seek to gain unfettered access to information about

13 their child’s gender identity, regardless of the wishes of the

14 student, nor is there a public interest in a parent forcing their

15 own beliefs on gender on their child against their will. Opp’n

16 at 23. To the contrary, there is an interest in creating a zone

17 of protection at schools in the rare circumstances where the

18 disclosure of a child’s gender expression at school could lead to

19 harm from within their family. Id.

20 Considering the Court’s disposition on the other Winter

21 factors, it is not swayed one way or the other regarding the

22 public interest. Both parties raise valid concerns. It is not

23 necessarily a school’s duty to act as an impenetrable barrier

24 between student and parent on intimate, complex topics like

25 gender expression and sexuality, particularly when students can

26 be as young as five years old. On the other hand, granting

27 parents unimpeded access to and control over a student’s personal

28 life can result in conflict that makes students feel vulnerable

EI IE IRI IERIE III III EN IRIE IE IE, OE

1 and unsafe both at home and at school, depending on their

2 parents’ personal beliefs. There are also practical concerns

3 about the enforceability of anti-harassment policies like the

Regulation, particularly in cases where a school could be

5 | prevented from providing institutional support and protection for

6 certain marginalized identities because of parents’ personal

7 beliefs. However, these concerns are not dispositive in this

8 case and are better suited for deliberation by the legislature.

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10 Iv. ORDER

11 For the reasons set forth above, the Court DENIES

12 Plaintiff’s motion for preliminary injunction.

13 IT IS SO ORDERED.

14 Dated: March 8, 2023

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opens

JOHN A. MENDEZ

17 SENIOR UNITED*STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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