Aurora Regino v. Kelly Staley

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AURORA REGINO, No. 23-16031

Plaintiff-Appellant, D.C. No.

2:23-cv-00032-

v. JAM-DMC

KELLY STALEY, Superintendent,

OPINION

Defendant-Appellee,

and

CAITLIN DALBY; REBECCA

KONKIN; TOM LANDO; EILEEN

ROBINSON; MATT TENNIS,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted May 9, 2024

Pasadena, California

Filed April 4, 2025

2 REGINO V. STALEY

Before: Kim McLane Wardlaw, Morgan Christen, and

Mark J. Bennett, Circuit Judges.

Opinion by Judge Christen

SUMMARY *

Due Process

The panel vacated the district court’s dismissal of a

complaint brought pursuant to 42 U.S.C. § 1983 by Aurora

Regino, who challenged a Chico Unified School District

policy under which the District began using Regino’s child’s

new preferred name and pronoun without informing her.

Regino, raising facial and as-applied challenges, alleged

that enforcement of the District’s policy deprived her of her

rights to both substantive and procedural due process. The

district court dismissed the complaint on the basis that

Regino failed to allege the existence of a fundamental right

that was clearly established in existing precedent.

The panel held that the district court applied erroneous

legal standards to the substantive and procedural due process

claims. Addressing the as-applied substantive due process

claim, the panel held that this court has never held that a

plaintiff asserting a substantive due process claim must show

that existing precedent clearly establishes the asserted

fundamental right. Rather, the critical inquiry is whether an

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

REGINO V. STALEY 3

asserted fundamental right is objectively, deeply rooted in

this Nation’s history and tradition, and implicit in the

concept of ordered liberty, such that neither liberty nor

justice would exist if it was sacrificed. The panel declined

to undertake the proper analysis in the first instance because

the parties failed to articulate the scope of their respective

claims and defenses consistently during litigation. The panel

instructed the district court on remand to adopt a narrow

definition of the interest at stake, carefully parse the District

policy’s terms, and apply existing precedent, which

recognizes that the right of parents to make decisions

concerning the care, custody and control of children is not

unbounded.

Addressing Regino’s as-applied procedural due process

claim, the panel held that Regino need not have identified a

fundamental right to establish a violation of her procedural

due process rights. Rather, procedural due process protects

all liberty interests that are derived from state law or from

the Due Process Clause itself. The panel instructed the

district court on remand to consider whether Regino

adequately alleged the deprivation of a liberty interest,

regardless of whether that interest is deemed fundamental.

Addressing Regino’s facial claims, the panel noted that

the district court did not address the distinction between

facial and as-applied challenges. Because the district court

erred in its analysis of Regino’s as-applied claims, its

analysis of Regino’s facial claims was flawed. The panel

therefore vacated the district court’s dismissal and

remanded.

4 REGINO V. STALEY

COUNSEL

Joshua W. Dixon (argued) and Eric A. Sell, Center for

American Liberty, Mount Airy, Maryland; Harmeet K.

Dhillon, Dhillon Law Group Inc., San Francisco, California;

for Plaintiff-Appellant.

Jimmie E. Johnson (argued), Brian A. Duus, and Louis

Leone, Leone Alberts & Duus APC, Corncord, California,

for Defendant-Appellee.

Julie Veroff (argued), Deputy Solicitor General; Brian

Bilford and Delbert Tran, Deputy Attorneys General; Laura

Faer, Supervising Deputy Attorney General; Michael L.

Newman, Senior Assistant Attorney General; Rob Bonta,

California Attorney General; Office of the California

Attorney General, California Department of Justice, San

Francisco, California; Philip J. Weiser, Colorado Attorney

General, Office of the Colorado Attorney General, Denver,

Colorado; William Tong, Connecticut Attorney General,

Office of the Connecticut Attorney General, Hartford,

Connecticut; Brian L. Schwalb, District of Columbia

Attorney General, Office of the District of Columbia

Attorney General, Washington, D.C.; Anne E. Lopez,

Hawai’i Attorney General, Office of the Hawai’i Attorney

General, Honolulu, Hawai’i; Kwame Raoul, Illinois

Attorney General, Office of the Illinois Attorney General,

Chicago, Illinois; Aaron M. Frey, Maine Attorney General,

Office of the Maine Attorney General, Augusta, Maine;

Anthony G. Brown, Maryland Attorney General, Office of

the Maryland Attorney General, Baltimore, Maryland;

Andrea J. Campbell, Commonwealth of Massachusetts

Attorney General, Office of the Commonwealth of

Massachusetts Attorney General, Boston, Massachusetts;

Keith Ellison, Minnesota Attorney General, Office of the

REGINO V. STALEY 5

Minnesota Attorney General, St. Paul, Minnesota; Matthew

J. Platkin, New Jersey Attorney General, Office of the New

Jersey Attorney General, Trenton, New Jersey; Letitia

James, New York Attorney General; Office of the New York

Attorney General, New York, New York; Ellen F.

Rosenblum, Oregon Attorney General, Office of the Oregon

Attorney General, Salem, Oregon; Peter F. Neronha, Rhode

Island Attorney General, Office of the Rhode Island

Attorney General, Providence, Rhode Island; Charity R.

Clark, Vermont Attorney General, Office of the Vermont

Attorney General, Montpelier, Vermont; Robert W.

Ferguson, Washington Attorney General, Office of the

Washington Attorney General, Olympia, Washington; for

Amici Curiae State(s) of California, Colorado, Connecticut,

District of Columbia, Hawai’i, Illinois, Maine, Maryland,

Massachusetts, Minnesota, New Jersey, New York, Oregon,

Pennsylvania, Rhode Island, Vermont, and Washington.

Peter M. Torstensen Jr., Deputy Solicitor General; Christian

B. Corrigan, Solicitor General; Austin Knudsen, Montana

Attorney General; Montana Department of Justice, Helena,

Montana; Steve Marshall, Alabama Attorney General,

Office of the Alabama Attorney General, Montgomery,

Alabama; Treg Taylor, Alaska Attorney General, Office of

the Alaska Attorney General, Fairbanks, Alaska; Tim

Griffin, Arkansas Attorney General, Office of the Arkansas

Attorney General, Little Rock, Arkansas; Ashley Moody,

Florida Attorney General, Office of the Florida Attorney

General, Tallahassee, Florida; Christopher M. Carr, Georgia

Attorney General, Office of the Georgia Attorney General,

Atlanta, Georgia; Raul R. Labrador, Idaho Attorney General,

Office of the Idaho Attorney General, Boise, Idaho;

Theodore E. Rokita, Indiana Attorney General; Office of the

Indiana Attorney General, Indianapolis, Indiana; Brenna

6 REGINO V. STALEY

Bird, Iowa Attorney General, Office of the Iowa Attorney

General, Des Moines, Iowa; Kris Kobach, Kansas Attorney

General, Office of the Kansas Attorney General, Topeka,

Kansas; Jeff Landry, Louisiana Attorney General, Office of

the Louisiana Attorney General, Baton Rouge, Louisiana;

Lynn Fitch, Mississippi Attorney General, Office of the

Mississippi Attorney General, Jackson, Mississippi; Andrew

Bailey, Missouri Attorney General, Office of the Missouri

Attorney General, Jefferson City, Missouri; Michael T.

Hilgers, Nebraska Attorney General, Office of the Nebraska

Attorney General, Lincoln, Nebraska; Drew H. Wrigley,

North Dakota Attorney General, Office of the North Dakota

Attorney General, Bismarck, North Dakota; Dave Yost,

Ohio Attorney General, Office of the Ohio Attorney

General, Columbus, Ohio; Gentner F. Drummond,

Oklahoma Attorney General, Office of the Oklahoma

Attorney General, Oklahoma City, Oklahoma; Alan Wilson,

South Carolina Attorney General, Office of the South

Carolina Attorney General, Columbia, South Carolina;

Marty Jackley, South Dakota Attorney General, Office of the

South Dakota Attorney General, Pierre, South Dakota; Ken

Paxton, Texas Attorney General, Office of the Texas

Attorney General, Austin, Texas; Sean D. Reyes, Utah

Attorney General, Office of the Utah Attorney General, Salt

Lake City, Utah; Jason Miyares, Virginia Attorney General,

Office of the Virginia Attorney General, Richmond,

Virginia; Patrick Morrisey, West Virginia Attorney General,

Office of the West Virginia Attorney General, Charleston,

West Virginia; for Amici Curiae State(s) of Alabama,

Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas,

Louisiana, Mississippi, Missouri, Montana, Nebraska, North

Dakota, Ohio, Oklahoma, South Carolina, South Dakota,

Texas, Utah, Virginia, and West Virginia.

REGINO V. STALEY 7

Leonard B. Garfinkel, General Counsel, California

Department of Education, Sacramento, California, for

Amicus Curiae California Department of Education.

Theresa C. Witherspoon and Laura P. Juran, California

Teachers Association, Burlingame, California; Glenn

Rothner, Rothner Segall & Greenstone, Pasadena,

California; for Amici Curiae California Teachers

Association, California Federation of Teachers, California

Association of School Psychologists, California Association

of School Counselors, California School Nurses

Organization, and California Association of School Social

Workers.

Ilya Shapiro, Manhattan Institute, New York, New York, for

Amici Curiae Manhattan Institute and Dr. Leor Sapir.

John A. Eidsmoe, Talmadge Butts, and Roy S. Moore,

Foundation for Moral Law, Gallant, Alabama, for Amicus

Curiae Foundation for Moral Law.

Jennifer W. Kennedy, Law Office of Jennifer W. Kennedy,

Sierra Madre, California, for Amicus Curiae Our Duty.

Dean McGee and Emily Rae, Liberty Justice Center,

Chicago, Illinois; Luke N. Berg and Richard M. Esenberg,

Wisconsin Institute for Law & Liberty, Milwaukee,

Wisconsin; for Amici Curiae Liberty Justice Center,

Wisconsin Institute for Law & Liberty, and Dr. Erica E.

Anderson, PhD.

Katherine L. Anderson and David A. Cortman, Alliance

Defending Freedom, Scottsdale, Arizona; John J. Bursch,

Vincent M. Wagner, and Matthew C. Ray, Alliance

Defending Freedom, Lansdowne, Virginia; for Amicus

Curiae The Justice Foundation.

8 REGINO V. STALEY

Amy Whelan and Shannon Minter, National Center for

Lesbian Rights, San Francisco, California, for Amicus

Curiae Professors of Psychology & Human Development.

Jean Strout and Kamala Buchanan-Williams, National

Center for Youth Law, Oakland, California, for Amicus

Curiae National Center for Youth Law.

Jennifer L. Chou and Elizabeth O. Gill, ACLU Foundation

of Northern California, San Francisco, California; Amanda

Goad, Ariana Rodriguez, and Christine Parker, ACLU

Foundation of Southern California, Los Angeles, California;

Harper Seldin, American Civil Liberties Union Foundation,

New York, New York; for Amici Curiae American Civil

Liberties Union, American Civil Liberties Union of

Northern California, and American Civil Liberties Union of

Southern California.

Jeffrey M. Gutkin, Cooley LLP, San Francisco, California;

Urvashi Malhotra, Cooley LLP, Palo Alto, California; Karen

L. Loewy, Lambda Legal Defense and Education Fund, Inc.,

Washington, D.C.; Paul D. Castillo, Lambda Legal Defense

and Education Fund, Inc., Dallas, Texas; for Amici Curiae

Lambda Legal Defense and Education Fund, Inc., GLBTQ

Legal Advocates & Defenders, The Trevor Project, Inc.,

Pflag, Inc., Equality California, Inc., Courage California,

Rainbow Pride Youth Alliance, Sacramento LGBT

Community Center, and Legal Services of Northern

California.

REGINO V. STALEY 9

OPINION

CHRISTEN, Circuit Judge:

Aurora Regino’s minor child is a student in the Chico

Unified School District. Consistent with a District policy,

the District began using the child’s new preferred name and

pronouns without informing Regino. Regino challenged the

policy in district court, raising as-applied and facial claims

and arguing that enforcement of the policy deprived her of

substantive and procedural due process. The district court

dismissed Regino’s complaint. Because the district court

applied erroneous legal standards to the substantive and

procedural due process claims, we vacate and remand.

I

A

This appeal concerns the Chico Unified School District’s

Administrative Regulation #5145.3 (the “Policy”). The

Policy was developed, adopted, and implemented by

Superintendent Kelly Staley, or her predecessor, and it

applies to all schools within the District. 1 The Policy

1

These facts are derived from the allegations in Regino’s complaint.

With respect to the Policy, Staley asserts that the District based the

Policy on a sample regulation circulated by the California School Boards

Association in accordance with directives issued by the California

Department of Education (“CDE”). According to Staley, the CDE issued

its directives in the form of a list of “Frequently Asked Questions” and

did so to provide guidance for complying with California Assembly Bill

No. 1266 (2013), which, inter alia, prohibits California public schools

from discriminating on the basis of gender, gender identity, and gender

expression. Although the State of California and the CDE appeared as

amici curiae in this appeal, they are not parties. Neither the precise

10 REGINO V. STALEY

“prohibits acts of verbal, nonverbal, or physical aggression,

intimidation, or hostility that are based on sex, gender

identity, or gender expression, or that have the purpose or

effect of producing a negative impact on the student’s

academic performance or of creating an intimidating,

hostile, or offensive educational environment, regardless of

whether the acts are sexual in nature.” Prohibited conduct

includes “[r]efusing to address a student by a name and the

pronouns consistent with the student’s gender identity,” and

“[r]evealing a student’s transgender status to individuals

who do not have a legitimate need for the information,

without the student’s consent.”

The Policy requires that the District “address each

situation” concerning transgender or gender-nonconforming

students “on a case-by-case basis, in accordance with

[certain] guidelines.” Three such guidelines are relevant to

this appeal. First, a “Compliance Officer shall accept the

student’s assertion of his/her gender identity and begin to

treat the student consistent with that gender identity.”2

Second, “[i]f a student so chooses, district personnel shall be

required to address the student by a name and the pronoun(s)

consistent with the student’s gender identity, without the

necessity of a court order or a change to the student’s official

district record.” 3 Third, “the district shall only disclose” a

origin of the Policy, nor its relationship to any state-level legislation or

regulation, is at issue in this appeal.

2

A Compliance Officer need not accept a student’s assertion of his or

her gender identity if “district personnel present a credible and

supportable basis for believing that the student’s assertion is for an

improper purpose.”

3

The Policy states that “inadvertent slips or honest mistakes . . . will, in

general, not constitute a violation of this administrative regulation.”

REGINO V. STALEY 11

student’s transgender or gender-nonconforming status to

others “with the student’s prior written consent, except when

the disclosure is otherwise required by law or when the

district has compelling evidence that disclosure is necessary

to preserve the student’s physical or mental well-being.”

B

Regino is the single mother of two minor daughters, A.S.

and C.S., both of whom attend schools in the District.

During the 2021-22 school year, A.S. attended fifth grade at

Sierra View Elementary School. In the fall of 2021, when

A.S. was eleven years old, A.S. began to feel depressed and

anxious. She had experienced significant changes in her

home life during the preceding months, such as the death of

her grandfather and Regino’s completion of treatment for

breast cancer.

Throughout the 2021-22 school year, a school counselor

at Sierra View visited A.S.’s class on a regular basis to

remind students about the services provided by the

counselor’s office. During these visits, the counselor

addressed issues of gender identity and sexuality. In

December 2021, A.S. began to feel like she might be a boy.

Around that time, A.S. met with the counselor to discuss her

anxiety and depression, but did not discuss her feelings about

her gender identity.

In early 2022, A.S. visited the counselor and told her that

she “felt like a boy.” The counselor asked A.S. whether she

would like to go by a different name, and whether she would

prefer to be addressed with male pronouns. A.S. responded

that she would prefer male pronouns and to be addressed as

“J.S.” The counselor asked A.S. if she would like her mother

to be notified. A.S. responded that she did not want her

mother to know because she feared Regino would be mad at

12 REGINO V. STALEY

her. At the end of the visit, the counselor walked A.S. to her

classroom and informed the teacher that A.S. was now going

by “J.S.” and male pronouns. The teacher began referring to

A.S. in this manner. The counselor also arranged for other

school personnel to refer to A.S. as “J.S.” and with male

pronouns.

In the spring of 2022, the counselor and A.S. met on two

other occasions. During these meetings, the counselor

provided A.S. with information about a local community

group that advocated for LGBTQ+ causes and also discussed

“top surgery” and “breast binding.” During one of the

meetings, A.S. told the counselor she wanted to tell her

mother about her new gender identity. The counselor

encouraged A.S. to speak with other family members first

before telling her mother. In April 2022, A.S. told her

grandmother about her gender identity, and A.S.’s

grandmother promptly told Regino.

Regino was surprised to learn of A.S.’s new gender

identity and to hear that District personnel had been referring

to A.S. as J.S., and with male pronouns, without informing

Regino. Regino let A.S. know that she supported her and

would assist in her transition, if that was what A.S. wanted.

Regino arranged for A.S. to begin counseling sessions to

discuss her depression and anxiety.

In April 2022, Regino contacted the school to report that

the counselor and other personnel had not told her that they

had begun to refer to A.S. by a different name and with male

pronouns. Regino alleges that if she had been “involved in

the process, she would not have allowed Sierra View to

socially transition her daughter without first seeking

guidance from a mental health professional.” Regino raised

her concerns with the District, and after several discussions

REGINO V. STALEY 13

and meetings with various District employees, Regino met

with Staley in October 2022. During that meeting, Regino

sought assurances that what happened with A.S. would not

happen again with A.S. or with Regino’s younger daughter,

C.S. At that time, Regino learned about the Policy.

Meanwhile, over the spring and summer of 2022, A.S.’s

feelings about being a boy subsided. As of the time the

operative complaint was filed, A.S. identified as a girl and

remained in counseling for depression and anxiety. The

complaint alleges that C.S. began exhibiting traits and

behaviors that make her likely to seek to identify as a boy as

she gets older.

C

In January 2023, Regino filed a complaint in federal

court against Staley, seeking a declaration invalidating the

Policy as violative of Regino’s constitutional rights and an

injunction against enforcement of the Policy. 4 She also filed

a motion for a preliminary injunction, which the district

court denied.

In March 2023, in response to a motion to dismiss,

Regino filed a First Amended Complaint. That complaint,

which is the operative complaint, contains six claims raised

pursuant to 42 U.S.C. § 1983: (1) a facial substantive due

process challenge; (2) an as-applied substantive due process

challenge; (3) a facial procedural due process challenge;

(4) an as-applied procedural due process challenge; (5) a

facial First Amendment familial association challenge; and

4

Regino’s original complaint named, in addition to Staley, individual

members of the District’s Board of Education. The district court

dismissed these defendants and Regino does not appeal that ruling.

14 REGINO V. STALEY

(6) an as-applied First Amendment familial association

challenge.

Regino alleges that the Policy amounts to a “[s]ecrecy

[p]olicy,” whereby school personnel “(1) socially transition

any student who claims to have a transgender identity and

asks to be socially transitioned in the school environment

and (2) keep the social transitioning secret from the student’s

parents unless the student specifically authorizes parental

notification.” Regino asserts that social transitioning is “the

active affirmation of a person’s transgender identity.”

According to Regino, social transitioning in the school

setting “primarily refers to calling the student by a new name

associated with their transgender identity and referring to the

student by pronouns associated with their transgender

identity.” This social transitioning, Regino alleges, is “a

significant form of psychological treatment.” Regino

contends that enforcement of the Policy infringes her

constitutional rights because it requires District personnel to

socially transition her children without notice to her or her

consent.

In April 2023, Staley again moved to dismiss. The

district court granted the motion in full. The court reasoned

that Regino had failed to allege the existence of a

fundamental right that was clearly established in existing

precedent and denied leave to amend on the ground that

amendment would be futile. Regino timely appealed.

II

We review de novo a district court’s order granting a

motion to dismiss. Fields v. Palmdale Sch. Dist., 427 F.3d

1197, 1203 (9th Cir. 2005).

REGINO V. STALEY 15

III

“To prevail under 42 U.S.C. § 1983, a plaintiff must

prove that he was ‘deprived of a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.’”

Marsh v. County of San Diego, 680 F.3d 1148, 1152 (9th Cir.

2012) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 49-50 (1999)).

The Fourteenth Amendment’s Due Process Clause

provides that no State shall “deprive any person of life,

liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. This clause “‘protects individuals

against two types of government action’: violations of

substantive due process and procedural due process.”

United States v. Quintero, 995 F.3d 1044, 1051 (9th Cir.

2021) (quoting United States v. Salerno, 481 U.S. 739, 746

(1987)). Here, Regino alleges that Staley deprived her of her

rights to both substantive and procedural due process.

Regino raises facial and as-applied challenges premised

on each of these rights. Generally, “a facial challenge is a

challenge to an entire legislative enactment or provision.”

Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011).

An as-applied challenge, on the other hand, “contends that

the law is unconstitutional as applied to the litigant’s

particular [circumstances], even though the law may be

capable of valid application to others.” Foti v. City of Menlo

Park, 146 F.3d 629, 635 (9th Cir. 1998) (citation omitted).

We first address Regino’s as-applied claims, and then turn

to her facial claims.

16 REGINO V. STALEY

A

1

We begin with substantive due process. Substantive due

process protects individuals from state action that interferes

with fundamental rights. See Witt v. Dep’t of Air Force, 527

F.3d 806, 817 (9th Cir. 2008). Governmental action that

infringes a fundamental right is constitutional only if “the

infringement is narrowly tailored to serve a compelling state

interest.” Reno v. Flores, 507 U.S. 292, 302 (1993); see also

Fields, 427 F.3d at 1208. 5 On the other hand, “[l]aws that

do not infringe a fundamental right survive substantive-due-

process scrutiny so long as they are ‘rationally related to

legitimate government interests.’” Stormans, Inc. v.

Wiesman, 794 F.3d 1064, 1085 (9th Cir. 2015) (quoting

Washington v. Glucksberg, 521 U.S. 702, 728 (1997)).

To assess whether there has been a violation of a

fundamental right, we begin with “a ‘careful description’ of

the asserted fundamental liberty interest.” Glucksberg, 521

U.S. at 721; see also Stormans, 794 F.3d at 1085-86. With

5

The Supreme Court has applied two different legal standards to

substantive due process claims. Martinez v. City of Oxnard, 337 F.3d

1091, 1092 (9th Cir. 2003) (per curiam); see also Chavez v. Martinez,

538 U.S. 760, 787 (2003) (Stevens, J., concurring in part and dissenting

in part); Matsuda v. City & County of Honolulu, 512 F.3d 1148, 1156

(9th Cir. 2008). One is the “fundamental rights” standard we apply here.

The other is the “shocks the conscience” standard, under which

deliberate government action violates the Fourteenth Amendment if it is

“arbitrary” and “unrestrained by the established principles of private

right and distributive justice.” County of Sacramento v. Lewis, 523 U.S.

833, 845 (1998) (citation omitted). Because Regino asserts a violation

of her substantive due process rights solely under a fundamental rights

theory, we do not address the shocks-the-conscience standard and

express no opinion on its applicability.

REGINO V. STALEY 17

that careful description in mind, we must then decide

whether the asserted interest is “objectively, deeply rooted

in this Nation’s history and tradition, and implicit in the

concept of ordered liberty, such that neither liberty nor

justice would exist if [it was] sacrificed.” Khachatryan v.

Blinken, 4 F.4th 841, 858 (9th Cir. 2021) (quoting

Glucksberg, 521 U.S. at 720-21); see also Stormans, 794

F.3d at 1087.

Supreme Court precedent instructs us “to ‘exercise the

utmost care’ before ‘breaking new ground’ in the area of

unenumerated fundamental rights.” Khachatryan, 4 F.4th at

856 (alteration accepted) (quoting Collins v. City of Harker

Heights, 503 U.S. 115, 125 (1992)). Such caution is

warranted because the “guideposts for responsible

decisionmaking in this uncharted area are scarce and open-

ended.” Glucksberg, 521 U.S. at 720 (quoting Collins, 503

U.S. at 125); see also Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 239-40 (2022) (noting that substantive

due process has sometimes been “a treacherous field” that

has “led the Court to usurp authority that the Constitution

entrusts to the people’s elected representatives” (citation

omitted)). Thus, any new fundamental rights must typically

“be defined in a most circumscribed manner, with central

reference to specific historical practices.” Khachatryan, 4

F.4th at 856 (quoting Obergefell v. Hodges, 576 U.S. 644,

671 (2015)).

2

In the district court, Regino argued that the District’s

Policy violated her fundamental rights. Regino did not

precisely identify her asserted fundamental rights in her

operative complaint, but she broadly asserted in briefing on

the District’s motion to dismiss that the Policy infringed:

18 REGINO V. STALEY

(i) her right to make medical decisions for her children,

(ii) her right to make important decisions in the lives of her

children that go to the heart of parental decision-making, and

(iii) her right to maintain familial integrity and association. 6

Regino contends that these asserted rights are

encapsulated within the deep-rooted “fundamental right of

parents to make decisions concerning the care, custody, and

control of their children.” Troxel v. Granville, 530 U.S. 57,

66 (2000) (plurality opinion); see also Meyer v. Nebraska,

262 U.S. 390, 402 (1923); Pierce v. Soc’y of the Sisters of

the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35

(1925). But this broad parental right is not absolute; it must

“bow to other countervailing interests and rights, such as the

basic independent life and liberty rights of the child and of

the State acting as parens patriae.” Mueller v. Auker, 700

F.3d 1180, 1186 (9th Cir. 2012); see also Fields, 427 F.3d at

1204. Because limitations on this general right circumscribe

its scope and delineate its contours, “identifying a general

parental right is far different than concluding that it has been

infringed.” Hooks v. Clark Cnty. Sch. Dist., 228 F.3d 1036,

1042 (9th Cir. 2000).

Courts have recognized that parental rights are confined

by the interests of the State. For instance, although the right

6

Courts have not been “entirely clear regarding the source of the right”

to familial association and have “variously relied on the Fourteenth,

First, and Fourth Amendments.” Keates v. Koile, 883 F.3d 1228, 1235

(9th Cir. 2018). Here, Regino purports to raise familial association

claims under the rubrics of both substantive due process and the First

Amendment. However, the parties agree that in this particular scenario,

Regino’s familial association claims under the First Amendment are

entirely subsumed within her familial association claims premised on

substantive due process. Accordingly, we do not separately address her

First Amendment claims.

REGINO V. STALEY 19

of parents to make decisions concerning the care, custody,

and control of their children encompasses the right of parents

to make important medical decisions for their children, that

right is not unlimited. See Parham v. J.R., 442 U.S. 584,

603-04 (1979); Prince v. Massachusetts, 321 U.S. 158, 166

(1944). States have required compulsory vaccination for

children. Prince, 321 U.S. at 166. In some circumstances,

states may also perform medical treatments, such as blood

transfusions, over parents’ objections and contrary to

parents’ expressed beliefs. Jehovah’s Witnesses v. King

Cnty. Hosp. Unit No. 1 (Harborview), 278 F. Supp. 488, 504

(W.D. Wash. 1967) (three-judge panel), aff’d, 390 U.S. 598

(1968) (per curiam); see also Pickup v. Brown, 740 F.3d

1208, 1236 (9th Cir. 2014) (noting that parents cannot

compel a state to accept their views “of what therapy is safe

and effective for minors”).

Here, the district court concluded that Regino failed to

adequately allege the existence of a cognizable fundamental

right, but failed to conduct the proper analysis.

Understandably cautious about improperly expanding

substantive due process rights, the court borrowed a standard

from the qualified immunity context and reasoned that a

fundamental right is not sufficiently cognizable unless the

right has been “clearly established,” such that existing

precedent places it “beyond debate.” See David v.

Kaulukukui, 38 F.4th 792, 800 (9th Cir. 2022) (quoting

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per

curiam)). Because existing precedent did not expressly

address Regino’s articulation of her asserted fundamental

rights, the district court held that the rights she asserted were

not fundamental. This was error. We have never held that a

plaintiff asserting a substantive due process claim must show

that existing precedent clearly establishes the asserted

20 REGINO V. STALEY

fundamental right, and we see no reason to import this

standard now.

“Qualified immunity attaches when an official’s conduct

‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.’” White v. Pauly, 580 U.S. 73, 78-79 (2017)

(per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 11

(2015) (per curiam)). In the qualified immunity context, a

right is considered clearly established when it is “sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” Mullenix, 577 U.S.

at 11 (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)). This standard ensures that immunity protects “all

but the plainly incompetent or those who knowingly violate

the law.” Id. at 12 (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)).

The qualified immunity framework does not govern the

merits of substantive due process claims, where the critical

inquiry is whether an asserted fundamental right is

“objectively, deeply rooted in this Nation’s history and

tradition, and implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if [it was]

sacrificed.” Khachatryan, 4 F.4th at 858 (quoting

Glucksberg, 521 U.S. at 720-21). Indeed, a right need not

have been expressly recognized as fundamental in caselaw

for it to be deeply rooted in our history and tradition and

implicit in the concept of ordered liberty. Although we must

be “reluctant to expand the concept of substantive due

process” and must “exercise the utmost care” before

breaking new ground, the substantive due process

framework does not require a right to have been clearly

established by existing precedent. Glucksberg, 521 U.S. at

720.

REGINO V. STALEY 21

The district court imposed the qualified immunity

standard instead of applying the established test for

determining whether an asserted right is fundamental.

Because this placed an improper burden on Regino, this

portion of the district court’s order cannot stand.

3

Having concluded that the district court erred in its

analysis, we must decide whether to undertake the proper

analysis in the first instance. See Singleton v. Wulff, 428 U.S.

106, 121 (1976) (“The matter of what questions may be

taken up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals.”). Both

parties urge us to reach the question whether Regino has

adequately alleged the infringement of her fundamental

rights, but because the parties have failed to consistently

articulate the scope of their respective claims and defenses,

remand is required.

Regino’s characterization of her asserted fundamental

rights has shifted over the course of this litigation. In her

complaint, Regino loosely invoked general parental rights.

In response to the District’s motion to dismiss, she invoked

three nebulous rights that had been mentioned in prior cases.

On appeal, Regino’s position continued to evolve. For

instance, in her briefing to our court, Regino asserted a broad

right to control—i.e., including the right to grant or withhold

consent—any “psychological treatment” the State provides

her children, regardless of whether her child seeks that

treatment. Regino also argued in her briefing that schools

have an affirmative obligation to notify parents about their

children’s preferred gender identity. But at oral argument

before our court, Regino narrowed these positions. She

conceded that her parental rights do not encompass the right

22 REGINO V. STALEY

to invade her child’s relationship with a counselor or

therapist, and that a teacher’s knowledge of a child’s

transgender status does not trigger an affirmative obligation

to notify the child’s parents. Regino suggested at oral

argument that her fundamental rights were implicated only

by the District’s creation of an environment in which a

student’s transgender identity is affirmed—e.g., where a

counselor informs other faculty members to address a

student using a new name or pronouns.

These shifts in position are problematic because they

undermine the critical requirement that we begin the

substantive due process analysis with a “careful description”

of the asserted fundamental right. Glucksberg, 521 U.S. at

721; see also Collins, 503 U.S. at 125. 7 To be sure, there is

undoubtedly a “fundamental right of parents to make

decisions concerning the care, custody, and control of their

children,” Troxel, 530 U.S. at 66, but even Regino

acknowledges that there are important limitations on that

right, see Fields, 427 F.3d at 1204. With only a vague,

protean conception of the right Regino is asserting, it is

7

Regino argues that the “careful description” requirement applies only

to determine the existence of a new fundamental right, and not to analyze

whether an asserted right is encompassed within a fundamental right that

has been previously recognized. The Supreme Court has not embraced

this limitation, and has instead stated without qualification: “[W]e have

required in substantive-due-process cases ‘a careful description’ of the

asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721; see

also id. at 722 (“[W]e have a tradition of carefully formulating the

interest at stake in substantive-due-process cases.”); Raich v. Gonzales,

500 F.3d 850, 863-64 (9th Cir. 2007); Stormans, 794 F.3d at 1085-86.

Regardless of whether a right has been previously recognized in judicial

precedent, the critical question is whether the asserted right is “deeply

rooted in this Nation’s history and tradition,” and “implicit in the concept

of ordered liberty.” Glucksberg, 521 U.S. at 720-21.

REGINO V. STALEY 23

difficult to discern whether that right is properly recognized

as “fundamental.” Thus, on remand, it will be critical that

Regino clearly and consistently articulate the right or rights

she is actually asserting.

Like Regino, Staley has failed to consistently identify the

District’s justifications for its Policy. For example, Staley

argued in her briefing on appeal that minor children have the

same informational privacy interests in their gender identity

as adults. At oral argument, counsel for Staley took the

position that any student, regardless of age, could “trigger”

the Policy, and that the terms of the Policy make no

distinction between children who are six and those who are

seventeen. But Staley retreated from this unqualified

position at another point in the argument, and emphasized

that the Policy subjects a minor child’s decision about the

disclosure of his or her private information to “an adult

surrogate review” to determine whether disclosure is in the

best interest of the child.

The district court had no opportunity to address the

parties’ revamped arguments. In this circumstance, “it is

normally inappropriate for us to evaluate the argument in the

first instance.” Shirk v. United States ex rel. Dep’t of

Interior, 773 F.3d 999, 1007 (9th Cir. 2014). Thus, given

the meaningful changes in the parties’ respective positions,

we conclude that the best course is to vacate and remand.

Detrich v. Ryan, 740 F.3d 1237, 1248-49 (9th Cir. 2013) (en

banc) (noting that a “standard practice . . . is to remand to the

district court for a decision in the first instance without

requiring any special justification for so doing”), overruled

in part on other grounds by Shinn v. Ramirez, 596 U.S. 366

(2022). This will permit the district court to conduct the

proper analysis in the first instance. See Shirk, 773 F.3d at

1007 (“As a federal court of appeals, we must always be

24 REGINO V. STALEY

mindful that ‘we are a court of review, not first view.’”

(quoting Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658

F.3d 1038, 1043 n.4 (9th Cir. 2011))); see also Ecological

Rts. Found. v. Pac. Lumber Co., 230 F.3d 1141, 1154 (9th

Cir. 2000) (noting reasons that “[o]ur judicial system

generally assumes that consideration of an issue at both the

trial court and appellate court level is more likely to yield the

correct result”).

4

a

On remand, the district court shall consider whether

Regino has alleged the infringement of a fundamental right.

To do so, it should follow the “established method” of

substantive due process analysis. Glucksberg, 521 U.S. at

720.

This analysis begins by “carefully formulating” the

asserted fundamental right. Id. at 722. This will require the

court to examine Regino’s articulation of the particular

fundamental right she asserts. See Collins, 503 U.S. at 125

(noting that “[i]t is important . . . to focus on the allegations

in the complaint to determine how petitioner describes the

constitutional right at stake”). In conducting its analysis, the

court must eschew sweeping generalizations, and instead

“adopt a narrow definition of the interest at stake.” Raich,

500 F.3d at 863; see also Khachatryan, 4 F.4th at 857-58.

The Supreme Court has repeatedly rejected broad

formulations of asserted fundamental rights, in favor of

being “more precise.” Glucksberg, 521 U.S. at 723. For

example, rather than examining a generic “right to die,” the

Supreme Court identified the “constitutionally protected

right to refuse lifesaving hydration and nutrition.” Cruzan

REGINO V. STALEY 25

ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,

277-79 (1990). Similarly, in Flores, the Supreme Court

rejected the plaintiffs’ characterization of the right to

“freedom from physical restraint” as too generalized, and

instead addressed “the alleged right of a child who has no

available parent, close relative, or legal guardian, and for

whom the government is responsible, to be placed in the

custody of a willing-and-able private custodian rather than

of a government-operated or government-selected child-care

institution.” 507 U.S. at 302; see also Raich, 500 F.3d at 864

(accepting the plaintiff’s “careful statement” of the right to

“mak[e] life-shaping medical decisions that are necessary to

preserve the integrity of her body, avoid intolerable physical

pain, and preserve her life” only after specifically including

“the use of marijuana” as central to the proposed right

(alteration in original)).

To formulate the asserted fundamental right on remand,

the district court must consult “both the scope of the

challenged regulation and the nature of [Regino’s]

allegations.” Stormans, 794 F.3d at 1085. This will require

reconciling discrepancies between the parties’ assertions in

their pleadings, in their briefing, and in the positions they

advanced at argument. For example, it will be important for

Regino to clarify whether she asserts a right to decide

whether the District may engage in what she deems social

transitioning, or whether she asserts only a right to

notification if such social transitioning occurs. The court

should also clarify what information Regino argues District

personnel are required to disclose, and what Regino asserts

as the triggering event for any purported obligation of the

District to affirmatively provide parental notification.

Pursuant to Stormans, id., the district court must also

closely examine the details of the challenged Policy,

26 REGINO V. STALEY

including, for example, the circumstances under which it

allows or requires the District to inform a parent of a

student’s transgender or gender-nonconforming status. At

oral argument, counsel disagreed about whether the Policy

necessarily requires consideration of factors such as the

student’s age. Staley insisted that although the Policy does

not require that District personnel make a “best interests”

determination, any evaluation would undoubtedly consider

factors such as the student’s age and stated reasons for

preferring non-disclosure to determine what is in the

student’s best interest. Regino countered that the Policy

requires the District to presumptively assent to a student’s

desire to withhold information unless there are compelling

reasons to do otherwise that relate to the student’s “physical

or mental well-being.” In Regino’s view, the Policy is not

neutral; it favors non-disclosure. We leave it to the district

court to carefully parse the Policy’s terms on remand.

b

After formulating the asserted fundamental right, the

district court must consider whether the asserted right itself,

or one in which it is encompassed, is “objectively, deeply

rooted in this Nation’s history and tradition and implicit in

the concept of ordered liberty, such that neither liberty nor

justice would exist if [it was] sacrificed.” Id. at 1087

(quoting Glucksberg, 521 U.S. at 720-21); see also Fields,

427 F.3d at 1204. Thus far, both parties have advanced

unqualified positions that are unsupported by precedent:

Regino has suggested that parental rights are nearly

unlimited, and the District has insisted that a child’s right to

make decisions is nearly unrestricted. Neither is the case.

On remand, the district court will be able to conduct a

nuanced assessment of existing precedent concerning

fundamental rights for parents. See Glucksberg, 521 U.S. at

REGINO V. STALEY 27

721 (noting that “[o]ur Nation’s history, legal traditions, and

practices . . . provide the crucial ‘guideposts for responsible

decisionmaking’” (quoting Collins, 503 U.S. at 125)). Here,

we briefly identify some of the important decisional

guideposts for the district court’s inquiry.

The Supreme Court has long recognized “the

fundamental right of parents to make decisions concerning

the care, custody, and control of their children.” Troxel, 530

U.S. at 66. Courts often refer to this right as the “Meyer-

Pierce right because it finds its origin in two Supreme Court

cases”: Meyer and Pierce. Fields, 427 F.3d at 1204; see also

Parents for Privacy v. Barr, 949 F.3d 1210, 1229 & n.14

(9th Cir. 2020). Meyer and Pierce both involved parents that

sought to send their children to private school in violation of

state law. In Meyer, the Supreme Court recognized the right

of parents to “establish a home and bring up children” and

“to control the education of their own.” Meyer, 262 U.S. at

399-401. In Pierce, the Court acknowledged that the

“liberty of parents and guardians” includes the right “to

direct the upbringing and education of children under their

control.” Pierce, 268 U.S. at 534-35. The Supreme Court

has since reaffirmed parents’ fundamental right to make

decisions concerning the care, custody, and control of their

children in the context of cases involving, for example,

custody termination, Stanley v. Illinois, 405 U.S. 645, 651

(1972), a child’s voluntary commitment, Parham, 442 U.S.

at 602, and compulsory secondary education, Wisconsin v.

Yoder, 406 U.S. 205, 213-14 (1972). See also Troxel, 530

U.S. at 66 (collecting cases).

But the right to “make decisions concerning the care,

custody, and control” of children, Troxel, 530 U.S. at 66, “is

not without limitations.” Fields, 427 F.3d at 1204; see also

Lehr v. Robertson, 463 U.S. 248, 256 (1983) (noting that

28 REGINO V. STALEY

parental rights “are sufficiently vital to merit constitutional

protection in appropriate cases”). The right does not reside

exclusively with parents and is subject to regulation by the

State “in the public interest.” Fields, 427 F.3d at 1204

(alterations accepted) (quoting Prince, 321 U.S. at 166); see

also Hooks, 228 F.3d at 1042. Several well-established

limitations may bear on Regino’s claims.

As already noted, the right of parents to make important

medical decisions for their children is not unbounded. See

Parham, 442 U.S. at 603-04. States may, under some

circumstances, compel vaccination or medical treatments,

even over parents’ objections. Prince, 321 U.S. at 166-167;

Jehovah’s Witnesses, 278 F. Supp. at 504. Similarly, in the

education context, Meyer and Pierce have been cabined.

The Supreme Court has “stressed the ‘limited scope of

Pierce,’ . . . which simply ‘affirmed the right of private

schools to exist and to operate.’” Runyon v. McCrary, 427

U.S. 160, 177 (1976) (citation omitted). As a general matter,

“parents have the right to choose the educational forum, but

not what takes place inside the school.” Cal. Parents for the

Equalization of Educ. Materials v. Torlakson, 973 F.3d

1010, 1020 (9th Cir. 2020). Parents “lack a constitutional

right to direct the curriculum that is taught to their children,”

and “also lack constitutionally protected rights to direct

school administration more generally.” Parents for Privacy,

949 F.3d at 1231; see also Fields, 427 F.3d at 1205

(collecting cases).

These precedents and others will guide the district

court’s analysis on remand.

REGINO V. STALEY 29

B

We next address Regino’s as-applied procedural due

process claim. Because we conclude that the district court

erred in its analysis, we vacate and remand.

“The requirements of procedural due process apply only

to the deprivation of interests encompassed by the

Fourteenth Amendment’s protection of liberty and

property.” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962,

972 (9th Cir. 2015) (quoting Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 569 (1972)). Thus, to state a claim,

Regino must first allege that she “has been deprived of a

protected interest in ‘property’ or ‘liberty.’” Am. Mfrs., 526

U.S. at 59 (quoting U.S. Const. amend. XIV). If she

adequately alleges such a deprivation, we must ask “whether

the procedures attendant upon that deprivation were

constitutionally sufficient.” Am. Civ. Liberties Union of

Nev. v. Masto, 670 F.3d 1046, 1058 (9th Cir. 2012) (quoting

Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).

The district court concluded that Regino’s procedural

due process claim failed because she did not “allege

sufficient facts to establish that her fundamental parental

rights extend to the circumstances of the instant case.” In

the district court’s view, Regino’s failure to adequately

allege a fundamental right in support of her substantive due

process claims necessarily foreclosed her procedural due

process claims. This was error because the “procedural

component of the Due Process Clause protects more than

just fundamental rights.” Mullins v. Oregon, 57 F.3d 789,

795 (9th Cir. 1995); see also Brittain v. Hansen, 451 F.3d

982, 1000 (9th Cir. 2006) (noting that “[p]rocedural due

process is not limited to interests which are ‘fundamental’”

and, unlike substantive due process, does not raise “concerns

30 REGINO V. STALEY

of unbounded discretion and judicial supremacy”). Rather,

procedural due process “protects all liberty interests that are

derived from state law or from the Due Process Clause

itself.” Mullins, 57 F.3d at 795. Accordingly, Regino need

not have identified a fundamental right to establish a

violation of her procedural due process rights.

We vacate and remand for the district court to conduct a

procedural due process analysis in the first instance. See

Shirk, 773 F.3d at 1007. On remand, the district court shall

consider whether Regino adequately alleged the deprivation

of a liberty interest, regardless of whether that interest is

deemed fundamental.

C

Regino also raises facial claims, and the foregoing

analysis applies to those claims as well.

Generally, “a plaintiff cannot succeed on a facial

challenge unless he ‘establishes that no set of circumstances

exists under which the law would be valid,’ or he shows that

the law lacks a ‘plainly legitimate sweep.’” Moody v.

NetChoice, LLC, 603 U.S. 707, 723 (2024) (alterations

accepted) (citations omitted). 8 Whether a challenge is

8

In the First Amendment context, a less demanding standard applies.

See Moody, 603 U.S. at 723. There, a “restriction on speech is facially

overbroad if . . . ‘a substantial number of its applications are

unconstitutional, judged in relation to the provision’s plainly legitimate

sweep.’” Hernandez v. City of Phoenix, 43 F.4th 966, 980 (9th Cir.

2022) (alterations accepted) (citation omitted). This standard “provides

breathing room for free expression,” as “[o]verbroad laws ‘may deter or

chill constitutionally protected speech.’” United States v. Hansen, 599

U.S. 762, 769-70 (2023) (quotation marks and citation omitted).

Although Regino nominally raises a First Amendment claim, she

concedes that it is coextensive with her substantive due process claim,

REGINO V. STALEY 31

“facial or as-applied affects the extent to which the invalidity

of the challenged law must be demonstrated and the

corresponding ‘breadth of the remedy.’” Bucklew v.

Precythe, 587 U.S. 119, 138 (2019) (citation omitted).

Regardless of the type of challenge, however, the underlying

constitutional standard remains the same. Legal Aid Servs.

of Or. v. Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir.

2010).

Here, the district court concluded that Regino’s as-

applied and facial claims failed for the same reasons and

expressly noted that the underlying constitutional standard

did not differ. The court did not address the distinction

between facial and as-applied challenges. Because we

conclude that the district court erred in its analysis of

Regino’s as-applied claims, its analysis of Regino’s facial

claims was flawed. We therefore vacate the district court’s

dismissal and remand.

IV

We vacate the district court’s judgment and remand for

further proceedings consistent with this opinion.9

and does not argue that the more relaxed First Amendment standard for

facial challenges applies here.

9

Regino requests (Dkt. 8) that we take judicial notice of court filings,

government records, and a journal article. Because this motion is

unopposed and the materials are judicially noticeable, this motion is

GRANTED. See Fed. R. Evid. 201(b); Reyn’s Pasta Bella, LLC v. Visa

USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Anderson v. Holder,

673 F.3d 1089, 1094 n.1 (9th Cir. 2012). Regino also requests (Dkt. 97)

that we take judicial notice of a report about gender identity services

from the United Kingdom’s National Health Service. Staley opposes

this request. Because the statements made in the report are disputed, this

motion is DENIED. Lee v. City of Los Angeles, 250 F.3d 668, 688-90

32 REGINO V. STALEY

VACATED AND REMANDED. 10

(9th Cir. 2001). Amicus Curiae Our Duty’s motion for leave to file a

supplemental letter brief (Dkt. 112) is GRANTED.

10

The parties shall bear their costs of appeal.