What If a Middle Schooler Wants to be Called "Lefty?" and Other Questions Raised but not Answered by Mirabelli v. Bonta

Last week, in Mirabelli v. Bonta, the Supreme Court by a 6-3 ideologically divided vote invalidated (on a nominally interim basis) a California law forbidding schools from providing parents with the information that their children are engaged in gender-transitioning unless their children consent or there is a compelling need to do so. For parents who have religious objections to their children transitioning, the Court relied on last term's decision in Mahmoud v. Taylor. For parents whose objections are not rooted in religion, the Court relied on the substantive due process (SDP) right of parents to direct the upbringing of their children, which, it said, "includes the right not to be shut out of participation in decisions regarding their children's mental health."

I'm going to focus mostly on the application of Mirabelli to parents whose objection to their children transitioning is not rooted in religion, even though I recognize that it would not be difficult for any parent who really wanted to exploit a decision that extended only to those with religious motives to do so: a parent who doesn't regularly attend worship services or belong to any organized congregation could nonetheless say something like "I believe that God made my daughter the way she is for a reason" or something similar and qualify for the religious claim. Even so, and based on how the case was litigated in the lower courts, the Supreme Court recognized that parents in California fall into two classes: those who object to gender transitioning on religious grounds and those who object on non-religious grounds.

Start with the Court's claim that parents have a SDP "right not to be shut out of participation in decisions regarding their children's mental health." For that proposition, the per curiam opinion cites Parham v. J.R., but the Court in that case said that children whose parents seek to have them committed for inpatient treatment at a mental hospital don't have their own constitutional right to a full-dress adversary hearing (as opposed to one triggered by credible charges of abuse or neglect) before a parent can consent, with the medical professionals' assent, to such treatment over the child's objection. The Parham Court recognized that the parents' interests in making decisions regarding their children's mental health counted as a reason for the state to do what it did in overriding the child's wishes but had no occasion to announce a parental constitutional right for the simple reason that the parents were not asserting such a right.

Nonetheless, I concede that parents do have a SDP right to participate in decisions about their children's medical treatment, including mental health treatment. That's easy for me because I have no problem with SDP. However, as Justice Kagan (joined by Justice Jackson) points out in her dissent, it's trickier for the majority because of the ways in which it denigrated SDP rights in Dobbs v. Jackson Women's Health Org. Justice Barrett, joined by CJ Roberts and Justice Kavanaugh, takes the bait and tries to explain in a concurrence in Mirabelli why parents' rights to direct the upbringing of their children is deeply rooted in history and tradition, whereas the abortion right is not. Notably, however, the concurring opinion makes no attempt to explain why the relevant question involves "parents' rights" in the abstract rather than the specific right asserted--which is what Washington v. Glucksberg and Dobbs seem to require.

It's not surprising that neither the per curiam nor the Barrett concurrence seeks to justify the right at issue in Mirabelli at a granular level. After all, it can hardly be said that "the right to be told that your child is, through pronouns and possibly dress, while at school, not identifying with their sex assigned at birth" is deeply rooted in history and tradition. The best that the concurrence can do is to cite Parham--which, as I've said, is not about parental rights at all--and two cases that are about parental rights but have nothing to do with making decisions about children's mental health (or health more broadly): Meyer v. Nebraska and Pierce v. Society of Sisters. The truth is that prior to Mirabelli itself, no Supreme Court case held that parents have a constitutional right to participate in mental health decisions of their minor children. And Mirabelli doesn't (or at least shouldn't) establish such a right, because officially it's only a holding of likelihood of success on the merits.

Notably, Justice Thomas--who said in Dobbs that the Court should take its wrecking ball to nearly all SDP rights--did not respond at all in Mirabelli to Justice Kagan. Justice Thomas did join in a prior opinion recognizing parental rights under SDP in Troxel v. Granville, but he did so only after stating that no one had argued in that case for abandoning SDP for all unenumerated rights or that some of the work of SDP should be shifted to the Privileges or Immunities Clause of the Fourteenth Amendment. I suppose if pressed he'd say something similar to justify his join in Mirabelli.

In any event, as I said, I think there is (or should be) a constitutional right of parents to participate in mental health treatment decisions of their minor children, at least presumptively. But that just tees up a question that none of the opinions in Mirabelli seems to recognize as present: Is such a right even implicated by the California policy at issue?

Let me make that concrete. Suppose that California policy was to provide cognitive behavioral therapy (or, to make the case even stronger, Freudian psychoanalysis) to any minor schoolchildren who request it and not to inform parents that they were doing this unless the child consented to parental notification. I would concede that such a policy is a prima facie violation of the parental right at issue. It might be valid, but only as applied in circumstances in which there is a substantial risk that informing the parents would result in their abusing or otherwise harming the child.

However, the schools in California were not providing therapy or any other kind of treatment. As the Ninth Circuit said in Mirabelli (quoting a similar case from the First Circuit): "'using the [s]tudent's chosen name and pronouns—something people routinely do with one another, and which requires no special training, skill, medication, or technology' is not a form of medical treatment that gives rise to a substantive due process claim." No other aspect of the California policy amounts to medical or mental health treatment either. Thus, the California policy does not infringe the SDP right of parents to participate in decisions regarding their children's mental health treatment.

Presumably, the majority thought otherwise, although it did not say why or how. The Barrett concurrence says that the dissenting Justices who have at other times complained that the Court makes too much law in emergency docket cases by writing a lot shouldn't be heard to complain now that the Court has written too little. But whether or not that's fair, one is left to wonder why all of the conservative Justices believe that California is engaged in mental health treatment--when the point that it obviously isn't features prominently in the Ninth Circuit ruling under review.

Here's a possibility: The per curiam does not say that parents have a right to participate in decisions regarding their children's mental health treatment. It says they have a right to "participat[e] in decisions regarding their children’s mental health," full stop. So maybe the Court is saying that because actions that concern gender transition concern a child's mental health, the parental right is implicated. To emphasize the mental health implications, the per curiam notes that one of the children involved in the case attempted suicide at the beginning of eighth grade and only then did the parents "learn from a doctor that" the child, who was assigned female at birth, "had gender dysphoria and had been presenting as a boy at school."

The Court apparently wishes readers to draw the inference that failure to inform the parents of their child's efforts to transition led to the suicide attempt. However, unless there's specific evidence to support that inference, it's more likely the opposite. Evidence shows that transgender youth face higher suicide risk than cisgender youth; the risk is higher for trans children whose families do not support their transition; by their own admission, the parents of the children at issue in Mirabelli do not support their children's transition; thus, the correctly anticipated reaction of opposition by the parents upon learning about their gender dysphoria, not the failure to tell the parents, was likely the more significant factor in leading to the suicide attempt.

But that's a tangent to my main point, which is this: Let's grant that a minor's decision to transition in school is a decision "regarding" mental health in the sense that it is made in the hope of positively affecting the minor's mental health. The same is true of a whole range of other decisions a minor might make regarding what happens at school, including: whether to join (or quit) the debate team; whether to try to befriend jocks, nerds, stoners, or theater kids; whether to go outside and get some fresh air or go to the school library to study for an upcoming biology test during a free period; whether to continue to be called on by the given name of Roderick and get picked on by bullies who find the name peculiar or go by something that peers find cooler like Rick or even Lefty; etc.

School districts, either as local policy or pursuant to state law or policy, may have any number of rules about the sorts of decisions students make that result in informing parents or guardians. Until now, I would not have thought that all of these rules and policies implicated the constitutional right of parents to direct the upbringing of their children simply because they can all implicate children's mental health.

I suspect that they still don't. I suspect that the substantive due process right that all of the Court's conservatives now recognize kicks in only to direct the upbringing of trans children--and then only if the parents oppose their children's transition. As Justice Kagan's dissent pointedly noted in a footnote contrasting Mirabelli with United States v. Skrmetti, the same Justices who think it is an emergency worthy of Supreme Court intervention when parents aren't notified that their child who was assigned female at birth wants to go by "Steven" at school didn't think that the right of parents to make decisions regarding gender-affirming care was worth even addressing.

Maybe that take is too cynical, but nothing in the Mirabelli per curiam or concurrence supports a more charitable interpretation.

-- Michael C. Dorf