By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Parents have a legal right to sue public schools when they’re not informed that their children are choosing to identify themselves as a gender other than the one to which they were born, the Arizona Court of Appeals has ruled.

In a unanimous conclusion, the court on Tuesday resurrected a lawsuit filed against the Mesa Unified School District by the parent who said she was not informed that her daughter was using a male name at her junior high school.

The judges said there was enough evidence to support the argument the district purposely withheld that information from the mother about her child’s sexual and gender identity issues.

Appellate Judge Michael Brown, writing for the court, said the Parents’ Bill of Rights, enacted by the Legislature in 2010, provides broad protections against interference with how a family chooses to raise a child. And they said the mother deserves to have her allegations heard at trial.

Potentially more significant, the revived lawsuit also opens the door not only for the mother, identified only as Jane Doe, to have her complaint heard. But it also could force the district to scrap the guidelines and policies it adopted saying they were designed to protect “nonconforming” students from discrimination.

All this comes against a backdrop of a multiyear effort by Sen. John Kavanagh, to bar school employees from knowingly referring to a student by a pronoun “that is different from the pronoun that aligns with the student’s biological sex” regardless of the student’s preference. The proposal by the Fountain Hills Republican also would have instituted a similar ban against teachers referring to a student by a name that does not match that person’s gender.

Only if a parent first gave permission would the law not apply.

The efforts have been quashed by Gov. Katie Hobbs who called it “harmful legislation directed as transgender youth.”

But the outcome of this case could make Kavanagh’s legislation unnecessary if there is a finding that the Parents’ Bill of Rights already requires parental notification.

According to court records, the guidelines adopted by the Mesa school board outline how to “provide support” to a student who is transgender, or “gender nonconforming,” and consistently asserts at school a gender than the sex assigned at birth. The district also maintained forms to be completed by the student detailing how school staff could best address that student’s needs.

It also says if a student does not make a formal request for a name change, there is no requirement to notify parents.

In October 2022, the mother said she found out her daughter, referred to in the legal filings only by the pseudonym Megan, was using a male name at school. The mother also said the school principal informed her it purposely did not list the preferred name in its official records to avoid sending a notice home.

All that, Doe alleged, was dangerous, harmful and illegal.

“School employees encouraged Megan to lie to her parents and helped her to do so, which harmed the parent-child relationship and delayed Megan from receiving needed mental health counseling,” argued the attorneys from America First Legal who are representing the mother.

Since that time, the lawyers said, Megan’s issues “were completely resolved” and she is now “comfortable presenting herself as female and using her given name.” But they argued the delay in her mother finding out resulted in “many moths of needless suffering.”

The trial judge tossed the case, saying the mother had waited too long to sue after learning of the problem. But the appellate court said that wasn’t the case because there was evidence the school did not comply with the mother’s initial requests to the school to stop referring to her by a male name.

Brown, in the new ruling, said all this turns on the Parents’ Bill of Rights.
That law, he said, spells out that all parental rights are exclusively reserved to a parent of a minor child without obstruction or interference from any governmental entity. And Brown said that’s very specific, barring interference with “the fundamental right of parents to direct the upbringing, education, health care and mental health of their children.”

What the law also says, Brown said, is that a parent can sue “based on any violation” of those rights.

The judge also said it’s irrelevant even if the problem appears to have been solved.

“Doe does not have to wait for additional violations of her fundamental right to parent to file suit,” the judge said. He said if the guidelines are unlawful, she has the right under the Parents’ Bill of Rights to seek a court ruling on whether Mesa schools have interfered with or usurped her parental rights “and whether court intervention is appropriate to prevent further violations.”

While Doe’s case can continue, the appellate court also dismissed a part of the lawsuit — filed even before Doe took action — by Rachel Walden, a member of the Mesa school board. Brown said her rights exist only to the extent she is entitled to participate in discussions about the policies and how they are implemented.

There was no immediate response from the school district.