What the Supreme Court's Ruling Means for LGBTQ Inclusion in California

Parents with religious objections to schoolbooks that favorably refer to lesbians, gays or transgender people have a right to be notified and remove their young children from class, the Supreme Court has ruled in the latest of a series of cases condemned by LGBT advocates. But it may not be the last word in California.

Friday's 6-3 decision in a case from Maryland came a week after the same Supreme Court majority upheld laws in Tennessee and 26 other states denying puberty blockers and other gender-affirming care for transgender minors. A month earlier, the justices allowed President Donald Trump to expel thousands of transgender troops from the U.S. military while it considers his request to ban them from service.

Together, the decisions mark a broad shift that California is fighting. Two years ago, Gov. Gavin Newsom imposed a $1.5 million fine on the Temecula Valley Unified School District in Riverside County for rejecting the state's social studies curriculum because it briefly discussed Harvey Milk, the gay-rights leader and San Francisco supervisor. Milk was assassinated in 1978 by former Supervisor Dan White, who also fatally shot Mayor George Moscone.

After imposing the fine and shipping a supply of Milk-inclusive textbooks to the Temecula district, Newsom signed a law, Assembly Bill 1078 by Corey Jackson, D-Perris (Riverside County), that prohibits school boards from banning instructional materials because they contain discussions of a particular "individual or group," such as Milk and his advocates.

The debate - inclusion and trans rights on one side, freedom of speech and religion on the other - was addressed Friday by a different set of referees, the Supreme Court's conservative majority. One of its most outspoken members, Justice Samuel Alito, said the Maryland school district's use of elementary-school textbooks with LGBT characters or themes violated the rights of religious parents to oversee their children's education.

"A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses a very real threat of undermining the religious beliefs and practices that the parents wish to instill," Alito wrote.

He described one storybook for grades kindergarten through five that showed Kate, apparently a transgender girl, in what Alito described as a "sex-neutral or sex-ambiguous bathroom," telling her friends that a bathroom "should be a safe space." Another book, titled "Prince & Knight," showed two men battling a dragon, then falling in love and marrying with applause from "the whole kingdom," Alito said.

Even if those books do not expressly endorse LGBT rights, Alito wrote, "they are clearly designed to present certain values and beliefs as things to be celebrated" and are being presented to "young, impressionable children" without notification to their parents. He cited the court's 1972 ruling that allowed Amish parents to remove their children from school after the eighth grade, in accordance with their religion, despite a Wisconsin law requiring attendance until age 16.

Dissenting Justice Sonia Sotomayor said the ruling "invents a constitutional right to avoid exposure" to subjects that displease students' parents.

Giving children "of all faiths and backgrounds … an opportunity to practice living in our multicultural society .. is critical to our Nation's civic vitality," said Sotomayor, joined by the court's other two Democratic appointees, Justices Elena Kagan and Ketanji Brown Jackson. "Yet it will become a mere memory if children must be insulated from exposure to ideas and concepts that may conflict with their parents' religious faiths."

California, unlike Maryland, has a law allowing parents with religious objections to their children's schoolbooks to remove their children from class - but only for classes related to health care. And last month a federal judge in San Diego barred a school district from assigning a book about a transgender child to a fifth-grader in a non-health care class without notifying his parents or allowing them to object.

The book, "My Shadow is Pink," tells the story of a boy who likes to wear dresses and is criticized at first by his father, who eventually comes to accept him. It was part of the Encinitas Union School District's "buddy program" in which fifth-graders use school materials to mentor kindergarteners.

Although state law serves "an admirable purpose" by requiring schools to teach students about the contributions of "historically marginalized groups," the district appears to have violated the fifth-grader's constitutional rights by not allowing him or his parents to object, said U.S. District Judge M. James Lorenz, an appointee of former President Bill Clinton.

The district has appealed Lorenz's order to the 9th U.S. Circuit Court of Appeals, which now can rely on the Supreme Court's analysis in assessing the state law.

"I am very concerned about the practical implications" of Friday's ruling, said Jonathan Glater, a professor of educational law at UC Berkeley.

"If I am a teacher, I might share with all parents a detailed explanation of all materials students might be exposed to, so that they can pull their students out of particular segments. The burden on a school of administrating those opt-outs is clear. And of course, a parental opt-out is highly unlikely to stop kids from talking with each other about the disfavored material; that is not how kids work."

The Supreme Court's ruling drew praise and criticism. Attorney Eric Baxter of the Becket Fund, which represented the Maryland youth's parents, said the court had reaffirmed that "parents - not government - have the final say in how their children are raised."

But Becky Pringle, president of the National Education Association, a union representing 2.8 million teachers, said the ruling "could have a chilling effect on students for generations to come."

California Attorney General Rob Bonta, who filed arguments with the court supporting the Maryland district, seemed unperturbed.

"By ensuring our curriculum reflects the full diversity of our student population, we foster an environment where every student feels seen, supported, and empowered to succeed," he said in a statement after the ruling. "In California, we will continue to remain a beacon of inclusivity, diversity, and belonging."

The case is Mahmoud v. Taylor, No. 24-297.

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