{"database": "openregs", "table": "crs_reports", "rows": [["LSB11422", "Parental Rights and Student Gender Transitions at School: Legal Developments", "2026-04-20T04:00:00Z", "2026-04-22T11:38:16Z", "Active", "Posts", "Jared P. Cole, Whitney K. Novak", "First Amendment, Free Exercise Clause, Jurisprudence, Privacy, School & Campus Safety, Civil Rights & Liberties, Due Process Clause, Family Education Rights & Privacy Act (FERPA)", "How public schools should treat transgender students has generated substantial debate, raising legal questions in contexts such as bathroom access, athletics participation, and pronoun usage. One particular area of legal disagreement concerns whether public schools must notify parents when a minor student seeks to transition their gender at school. This question may involve various considerations, including the rights of parents to control the upbringing of their children and freely exercise their religious beliefs, how those rights should apply in the public-school context, and potentially countervailing considerations about a student\u2019s autonomy, privacy, and the risk of parental abuse. \nStates and school districts have different rules regarding whether parents must be notified when students experience gender dysphoria and/or pursue gender transition. For instance, some states have passed laws requiring schools to affirmatively disclose to parents when a minor requests a change in pronouns used to identify the student. By contrast, a number of public schools in other states have implemented policies prohibiting disclosure of a student\u2019s gender identity to parents without the student\u2019s consent. Some parents have sued school districts that have implemented these latter policies, arguing that denying parents access to critical information about their children violates their constitutional rights. A recent Supreme Court decision on the matter, issued pursuant to its \u201cemergency docket,\u201d will likely inform how courts examine these questions going forward. \nIn Mirabelli v. Bonta, the Supreme Court partially reinstated a district court\u2019s injunction against California\u2019s policies that prohibit public schools from informing parents about their children\u2019s gender transition at school absent the child\u2019s consent. In a per curiam decision, the Court concluded that the parents were likely to succeed on the merits of their constitutional claims and that denial of those constitutional rights during the litigation process would cause irreparable harm. \nIn addition to the constitutional claims addressed in the Mirabelli decision, an existing federal statute imposes requirements on schools regarding the disclosure of student records. The Family Educational Rights and Privacy Act (FERPA) requires covered schools to allow parents to access their children\u2019s records unless an exception applies. The U.S. Department of Education (ED) enforces FERPA. ED determined in early 2026 that California\u2019s Department of Education (CDE) is out of compliance with FERPA because of its policies shielding information about a student\u2019s gender identity from parents.\nThis Sidebar explores these recent legal developments, beginning with a brief background on the legal principles that the Supreme Court applied in Mirabelli, the procedural history of the case, and a discussion of the Supreme Court\u2019s decision. The Sidebar then turns to FERPA, examining its overlapping relevance and the implications for parents, students, and schools that Congress may consider if it chooses to legislate further in this context.\nMirabelli: Relevant Constitutional Provisions and Precedent\nThe Court\u2019s per curiam decision in Mirabelli relied on precedent interpreting two constitutional provisions: the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. One subclass of parent plaintiffs who challenged the California policies claimed that because they had religious objections to gender transitioning, they were entitled to exemptions from the policies under the Free Exercise Clause. A subclass of plaintiffs also challenged California\u2019s policies as violating their substantive due process right to control the education and upbringing of their children.\nFree Exercise Clause\nThe Free Exercise Clause of the First Amendment forbids the government from \u201cprohibiting the free exercise\u201d of religion. According to the Supreme Court, government action implicates the Free Exercise Clause when it penalizes religious practice or coerces someone\u2014either directly or indirectly\u2014into acting contrary to their religious beliefs. Some burdens on religious exercise may nevertheless be constitutionally permitted. For one thing, the government is \u201cgenerally free to place incidental burdens on religious exercise\u201d so long as its policy that does so is neutral and generally applicable. If a government policy is neither neutral nor generally applicable, modern Free Exercise Clause jurisprudence instructs courts to apply strict scrutiny, meaning the government must prove its action \u201cadvances compelling interests and is narrowly tailored to achieve those interests.\u201d \nIn its 2025 decision in Mahmoud v. Taylor, the Court articulated an exception to these general Free Exercise Clause principles, holding that regardless of whether a policy is neutral or generally applicable, strict scrutiny applies when a government action substantially interferes with the religious development of a child or poses \u201ca very real threat of undermining\u201d the religious beliefs a parent wishes to instill in their child. In Mahmoud, parents of public-school children brought a Free Exercise Clause challenge against a school board\u2019s implementation of curriculum that featured \u201cLGBTQ+-inclusive\u201d books and a policy disallowing opt-outs from that curriculum. The Court, applying strict scrutiny, concluded that the use of the books in classroom instruction, without the option to opt-out, substantially interfered with the religious development of the children, and that the school district was unable to demonstrate that its policy of not allowing opt-outs from the curriculum was narrowly tailored to serve a compelling interest.\nDue Process Clause\nTwo Supreme Court cases from the 1920s recognized a parent\u2019s due process right to control their child\u2019s education. In Meyer v. Nebraska, decided in 1923, the Court reversed the conviction of a parochial school teacher who had violated a state law by instructing students in the German language. The Court ruled that the law impeded \u201cthe power of parents to control the education\u201d of their children in violation of the Due Process Clause. Two years later, in Pierce v. Society of Sisters, the Court examined an Oregon state law requiring children between 8 and 16 to attend public schools. The Court similarly ruled that the law interfered with parents\u2019 right \u201cto direct the upbringing and education of children under their control,\u201d including by choosing to send those children to private schools.\nThe Court subsequently applied these principles in the mental health context in 1979. In Parham v. J.R., the Court considered a due process challenge to Georgia\u2019s civil commitment procedures that allowed parents to commit minors to state mental hospitals without an adversarial hearing. The Court upheld the procedures, reasoning that parents \u201cretain a substantial, if not dominant, role\u201d in such decisions, that the \u201ctraditional presumption that the parents act in the best interests of their child should apply,\u201d and that parents have \u201cplenary authority\u201d to seek such treatment. Given the nature of a child\u2019s rights, the Court did acknowledge that parental discretion is not absolute and that inquiry by a \u201cneutral factfinder,\u201d such as a staff physician, should be required to determine whether admission requirements were satisfied. However, the Court rejected requiring a \u201cformalized . . . hearing\u201d due to the potential \u201csignificant intrusion in the parent-child relationship\u201d and concluded that Georgia\u2019s \u201cneutral and detached\u201d process for voluntary commitments satisfied due process requirements.\nMirabelli: Procedural History \nIn Mirabelli v. Bonta, parents and teachers challenged California policies that prohibit public schools from informing parents about their children\u2019s gender transition at school absent the child\u2019s consent. At issue was a CDE guidance document addressing the responsibilities of the state\u2019s public schools regarding transgender students. The document contended that transgender students have a right, rooted in state and federal law, to keep their transgender status private. Thus, according to the document, \u201c[w]ith rare exceptions, schools are required to respect the limitations that a student places on the disclosure of their transgender status, including not sharing that information with the student\u2019s parents.\u201d  \nParents and teachers brought distinctive challenges against California\u2019s policies in federal district court. The court ruled that parents have a right to access information about their child\u2019s gender based on the Due Process Clause of the Fourteenth Amendment and the Free Exercise Clause of the First Amendment. The court also ruled that teachers have a right to provide accurate information to parents under both the Free Speech Clause and, to the extent the teacher can demonstrate a burden on his or her religious exercise, under the Free Exercise Clause. The court issued a permanent injunction barring California from enforcing or implementing any state law that requires or permits any employee to either mislead a parent about their child\u2019s gender identity or to use pronouns or names that do not match their child\u2019s legal name if a parent objects. The U.S. Court of Appeals for the Ninth Circuit stayed that injunction pending appeal, concluding in part that the state had shown that the district court\u2019s decision likely was in error.\nMirabelli: Supreme Court Decision\nIn a per curiam decision, the Supreme Court vacated the Ninth Circuit\u2019s stay as to the parents while litigation continues, ruling that they were likely to succeed on the merits of their free exercise and due process claims and that denial of those constitutional rights during the litigation process would cause irreparable harm. As to the Free Exercise Clause claim, the Court held that California\u2019s policies were likely to trigger strict scrutiny because they substantially interfered with the \u201cright of parents to guide the religious development of their children\u201d under the principles set forth in Mahmoud v. Taylor. The Court stated that the intrusion on the parents\u2019 free exercise rights\u2014the \u201cunconsented facilitation of a child\u2019s gender transition\u201d\u2014was even greater than the burden at issue in Mahmoud. The Court also reasoned that the policies would likely not survive strict scrutiny because California\u2019s proffered compelling interest in student safety and privacy \u201ccut out the primary protectors of the children\u2019s best interests: their parents.\u201d The policies would also likely fail the narrow tailoring requirement, according to the Court, because they could have included religious exemptions while at the same time continuing to preclude gender-identity disclosure to parents who engage in abuse. \nThe Court also ruled that the parents were likely to succeed on their due process claim. The Court cited its prior decisions in Meyer v. Nebraska, Pierce v. Society of Sisters, and Parham v. J.R. and explained that according to \u201clong-established precedent,\u201d it is parents, rather than the state, who are entrusted with authority for raising and educating children. Further, the Court emphasized that this right includes being involved in decisions concerning a child\u2019s mental health. In the Court\u2019s view, California\u2019s policies conceal from parents that their child displays evidence of gender dysphoria and \u201cfacilitate a degree of gender transitioning during school hours.\u201d This, the Court concluded, likely violated a parent\u2019s constitutional right to control the raising and education of their own child.\nDissenting Opinion\nJustice Kagan, joined by Justice Jackson, wrote a dissenting opinion (Justice Sotomayor did not join the dissent but indicated she would have denied the request to stay the injunction). Justice Kagan\u2019s dissent criticized the majority opinion for granting relief through its emergency docket without more developed briefing. In Justice Kagan\u2019s view, the majority did so \u201cby means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute,\u201d which (in her view) would be treated as a merits judgment in the courts below. Moreover, Justice Kagan observed that the parental right recognized in the majority opinion was rooted in the doctrine of substantive due process, of which the Justices in the majority had previously been skeptical. Most recently, in its 2022 decision in Dobbs v. Jackson Women\u2019s Health Organization, the Court overruled its prior decisions that had determined the Constitution confers a right to abortion based in substantive due process. Justice Alito\u2019s majority opinion in Dobbs described substantive due process as \u201ca treacherous field,\u201d while Justice Thomas\u2019s concurrence said the doctrine lacked any constitutional basis. Justice Kagan also expressed concern with the majority\u2019s willingness to extend its recent decision in Mahmoud v. Taylor, suggesting that the \u201cink on that decision is barely dry, and courts have just begun to consider its meaning and reach,\u201d and therefore it was premature to grant relief without more developed analysis on the Free Exercise Clause issue.\nConcurring Opinion\nJustice Barrett, joined by the Chief Justice and Justice Kavanaugh, responded to the dissent in a concurring opinion. Citing Meyer, Pierce, and Parham, Justice Barrett wrote that the substantive due process doctrine has long recognized a parent\u2019s right to raise their child and participate in significant mental health decisions for them. According to the concurrence, the plaintiffs were likely to succeed under a \u201cstraightforward application\u201d of these cases because California \u201cquite obviously excludes parents from highly important decisions about their child\u2019s mental health.\u201d As to the majority\u2019s application of parental rights cases after Dobbs, the concurrence asserted that Dobbs simply determined that the substantive due process doctrine does not protect the right to an abortion, not that the doctrine itself or other rights it protects are suspect. Responding to the dissent\u2019s criticism that the majority\u2019s grant of relief reflects an \u201cimpatience\u2019 to reach the merits,\u2019\u201d the concurrence said the majority\u2019s opinion simply indicates the \u201crisk of irreparable harm to the parents.\u201d The concurrence explained that the parents would not be entitled to interim relief absent the serious harm of a possible years-long exclusion from participating in decisions about their children\u2019s mental health. Justice Barrett also suggested that in analyzing the Free Exercise Clause claim, the Ninth Circuit \u201csignificantly misunderstood Mahmoud v. Taylor,\u201d and therefore \u201cgeneral course correction will allow the case to progress efficiently.\u201d\nFERPA: Applicability and Recent ED Action\nBeyond the constitutional claims raised in Mirabelli, a related federal statute addresses parental access to student records. FERPA, which applies to educational institutions that receive financial assistance from ED, regulates how covered schools handle student education records. Among other things, as a condition of receiving funding from ED, FERPA requires schools to allow parents to \u201cinspect and review\u201d their children\u2019s education records unless an exception applies. Schools must provide access within 45 days of a request.\nOn March 28, 2025, ED issued a Dear Colleague Letter (DCL) to state and local education agencies (SEAs and LEAs), informing them of their obligations under FERPA and identifying \u201cpriority concerns.\u201d According to the DCL, many LEAs (with approval from, or under the direction of, SEAs) might have policies that conflict with FERPA\u2019s requirements regarding parental inspection and review of student records. For example, the DCL observed, some schools create \u201cgender plans\u201d for students but claim those plans are not \u201ceducation records\u201d that parents may access under FERPA, as they are not part of an \u201cofficial student record.\u201d According to the DCL, FERPA allows for no such distinction. With certain statutory exceptions, the DCL stated that all information related to a student and maintained by an educational institution is an education record which parents have a right to inspect and review. \nOn January 28, 2026, ED announced that, following an investigation, it had found CDE out of compliance with FERPA \u201cfor policies that pressure school officials to conceal information about students\u2019 gender identity.\u2019\u201d ED\u2019s announcement described CDE as maintaining \u201cgender support plans\u201d that were kept in separate filing systems in order to hide the records from parents. According to ED, \u201cCDE\u2019s guidance asserts that such plans are not part of a student\u2019s record accessible to parents, which directly violates parent\u2019s rights under FERPA to inspect all education records related to their minor children.\u201d The announcement indicated that ED had offered CDE the opportunity to voluntarily resolve the matter by taking certain actions. On February 11, 2026, CDE issued an update to schools in the state, explaining that student support plans with information on a student\u2019s gender identity are subject to parental access and review consistent with FERPA. It is unclear at this point whether the announcement resolves the issue for ED. The agency has also made a similar determination as to the policies of several school districts in Kansas regarding parental notification in cases of gender transitions.\nCongressional Considerations\nCongress may consider its options for addressing parental access to student records and information in light of the Supreme Court ruling in Mirabelli and ED\u2019s recent actions related to FERPA. Subject to constitutional constraints, Congress has discretion to amend FERPA and alter the obligations that follow from that statute and accompanying regulations. Congress could amend FERPA\u2019s provisions concerning parental access to records, including by defining with more specificity what records must be made available, altering the time limit within which access must be granted, or directing ED to promulgate new regulations consistent with congressional directions. Congress could also spell out additional parental rights regarding access to information at school. Alternatively, Congress could consider establishing certain rights of children or limiting parental access to student records, although it may be constrained by the constitutional boundaries reflected in Mirabelli.\nIn addition, FERPA currently does not contain a private right of action authorizing suits against recipient schools for violations of the law. Instead, the statute is primarily enforced administratively by ED against recipient schools. In cases of noncompliance, ED is authorized to withhold payments or terminate eligibility to receive funding. Congress could amend the statute to explicitly authorize private lawsuits, including establishing appropriate remedies for violations of the law. For instance, a bill introduced in the 119th Congress would create a private right of action and authorize courts to issue declaratory relief, injunctions, and award attorney\u2019s fees where violations are found. That said, Congress\u2019s ability to authorize private enforcement of FERPA may be limited in part by the Constitution\u2019s Article III standing requirements, including the requirement that a plaintiff suffer a concrete injury-in-fact. The Supreme Court has ruled that Article III \u201crequires a concrete injury even in the context of a statutory violation,\u201d and that \u201ccourts should assess whether the alleged injury to the plaintiff has a close relationship\u2019 to a harm traditionally\u2019 recognized\u201d by American courts. Certain tangible harms, such as physical or monetary harm, easily qualify as concrete injuries, but intangible harms may require more searching deliberations as to whether the harm is sufficiently similar to traditionally recognized harms like intrusion upon seclusion, forced disclosure of private information, reputational harms, or harms specified by the Constitution. 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