In Regino v. Staley, published April 4, 2025, the 9th Circuit Court of Appeals reversed dismissal of a 42 U.S.C. section 1983 suit at the pleading stage. A school district had a policy that prohibited conduct such as refusing to address a student by a name and pronouns consistent with the student’s gender identity and revealing a student’s transgender status to those who do not have a legitimate need for the information without the student’s consent. One of the plaintiff’s two children, who was 11 and biologically female told a school counselor that the child felt like a boy. The child stated that the child would prefer male pronouns and that the child did not want the mother to know. The counselor arranged for school personnel to refer to the child by a male name and male pronouns. The counselor advised the child about LGBTQ+ support, top surgery, and breast binding. When the child told the counselor the child wanted to tell the mother about the new gender identity, the counselor encouraged the child to speak with other family members first. The child spoke to the child’s grandmother, who then told the mother. The mother told the child that the mother supported the child in her decisions if that is what the child wanted. The mother expressed to the school personnel her concern that she had not been informed that the personnel were treating her child as a boy; and that if she had known she would not have allowed them to “socially transition her daughter without first seeking guidance from a mental health professional.” Later, the child’s feelings about being a boy subsided. At the time the complaint was filed, the child identified as a girl and was in therapy for depression and anxiety. Meanwhile, the mother’s other child allegedly began exhibiting traits making her more likely to identify as a boy as she gets older. The mother filed suit seeking a declaration invalidating the policy as violating the mother’s constitutional rights and an injunction against the policy’s enforcement. She asserted facial and as-applied procedural and substantive due process and First Amendment claims. The district court dismissed the action, ruling that the mother had failed to allege the existence of a fundamental right that was clearly established in existing precedent. It denied leave to amend as futile.
The 9th Circuit ruled that the district court erred in dismissing the substantive due process claim, because the district court failed to conduct the proper analysis in determining whether the mother adequately alleged the existence of a cognizable fundamental right protected by substantive due process. Parents have a broad fundamental right to make decisions concerning the care, custody, and control of their children, but those rights are confined by the interests of the State. The district court erred by borrowing the standard for qualified immunity and determining whether the right had been clearly established and placed beyond debate by existing precedent. The qualified immunity framework does not govern the merits of substantive due process claims. Instead, the inquiry is whether an asserted fundamental right is objectively deeply rooted in the 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. While courts must be reluctant to expand the concept of substantive due process and exercise the utmost care before breaking new ground, the right does not have to be clearly established by precedent. The appellate court declined to undertake the proper analysis itself, because the parties had failed to consistently articulate the scope of their respective claims and defenses. The substantive due process analysis must begin with a careful description of the asserted fundamental right. The plaintiff had provided shifting definition of the right, and the defendants had failed to consistently identify the district’s justification for its policy. The district court had no opportunity to address the parties’ revamped arguments. The 9th Circuit therefore remanded the issue to the district court. The court will have to determine whether the plaintiff’s asserted right meets the criteria for a fundamental right and examine the nuances of the district’s policy, considering precedents on parents’ rights and the state’s interests in limiting those rights. Regarding the procedural due process claim, the district court erred in determining a lack of a fundamental right defeated that claim. Procedural due process does not merely protect fundamental rights; it protects all liberty interests derived from state law or from the Due Process Clause itself. The 9th Circuit remanded that issue as well.
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