June 8, 2026
Mirabelli v. Bonta, 607 U.S. ___ (2026) (per curiam)
Case Note by Aidan Keaveney
Geo. Wash. L. Rev. On the Docket (Oct. Term 2025)
Slip Opinion | SCOTUSblog
Supreme Court Holds Schools Likely Required to Inform Parents of Students’ Gender Identity
The Supreme Court has weighed in on a fraught controversy over the rights of parents to instill their preferred values in their children, and the rights of transgender children to declare their own identities. By suggesting in Mirabelli v. Bonta1 that parents likely have a right to compel schools to inform them if their child begins to present as a gender different from their sex assigned at birth,2 the Court creates yet more uncertainty over two of the Constitution’s most hotly debated provisions: the Free Exercise Clause of the First Amendment3 and the Due Process Clause of the Fourteenth Amendment.4 Further complicating matters, the Court’s per curiam order was issued on an emergency stay application without full briefing, oral argument, conference, or lower court opinion, thus limiting its precedential value.5 Still, given the recent shifts in these areas of the law, Mirabelli may punch above its weight for lower courts and litigants in search of guidance.
Being transgender comes with increased risk of housing instability, bullying, violence, mental illness, and suicide.6 Because of these risks, any loving parent would want to know if a child is struggling with her gender identity so the parent can provide the emotional and medical care she needs. But some parents have additional reasons for monitoring their child’s gender presentation. Based on the Mirabelli class action complaint, these parents believe that children are incapable of making decisions about their gender identities and wish to prevent their child from transitioning out of concern that the child will come to regret it.7 Some sincerely believe that children are created in the image of God and that rejection of sex assigned at birth constitutes rejection of the image of God.8 The transgender children of these parents sometimes present as they desire in school while concealing their identity from their parents.9 If schools are aware that a student is transitioning, should they respect that student’s privacy and risk withholding the information from the parents; or should the school inform the parents and risk making the transgender child feel unwelcome at school, or worse, unsafe at home?
That is the question in Mirabelli. The California State Department of Education adopted policies prohibiting schools from disclosing, without the student’s consent, when students chose to present as a gender different from their sex assigned at birth, such as by asking others to use differently gendered pronouns or wearing more masculine, feminine, or androgynous clothing.10 California argued that these policies protect the transgender children of abusive parents who do not feel safe coming out at home, but who nevertheless wish to present consistent with their gender identities at school.11 These policies were challenged in the Southern District of California by parents who discovered that their children were presenting differently from their sex assigned birth at school without their knowledge—including, tragically, a pair of parents who found out only after their transgender child attempted suicide.12 The parents argued that the policies undermined their ability to instill religious values in their children in violation of the Free Exercise Clause, and to otherwise direct their child’s upbringing, a right secured by the Due Process Clause.13 The parents won a permanent injunction in the Southern District of California,14 but the Ninth Circuit stayed the injunction pending appeal,15 and the parents sought emergency relief from the Supreme Court.16
The parents’ Free Exercise Clause arguments are not new, but they have only recently started to receive attention from the Court. The basic Free Exercise Clause prohibition is on the government compelling “affirmation or denial of a religious belief” or “performance or non-performance of a religious exercise or practice.”17 Absent that sort of direct coercion, however, courts have only applied deferential rational basis review to requests for exemptions from otherwise legitimate policies purely on the basis of parents’ religious objections.18 Wisconsin v. Yoder19 was the sole deviation from that pattern. In Yoder, the Court held that members of the Wisconsin Amish community could not be compelled to attend high school because forcing Amish students to assimilate to the competitive, materialistic, and intellectual culture of public high school threatened “the destruction” of that conspicuously insular community.20 For decades, however, courts considered Yoder practically sui generis, because few groups could make as compelling a claim as the Amish.21
That changed with the Court’s opinion in Mahmoud v. Taylor.22 In Mahmoud, parents sought a religious exemption from a new curriculum in the Montgomery County, Maryland public school system designed to foster acceptance of LGBTQ+ students and families.23 The Court promulgated a new test based on Yoder, stating that strict scrutiny applies when a school’s policy “poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.”24 Applying this test, the Court found that the LGBTQ+-inclusive storybooks imposed on students a view of gender and sexuality in opposition to that of their parents and thus burdened the parents’ rights.25
The Mirabelli parents’ Due Process Clause arguments likewise have a rich, controversial ancestry. Two cases survived the New Deal Court’s purge of Lochner v. New York26 and other early “substantive due process” cases: Meyer v. Nebraska,27 which struck down World War I–era laws prohibiting the teaching of German in public schools,28 and Pierce v. Society of Sisters,29 which held that states cannot require that all children attend public schools.30 The decisions in Meyer and Pierce were later cast at a higher degree of abstraction, becoming seminal cases securing sweeping parental rights to direct the upbringing of children.31 Parham v. J.R.32 joined this line of parental rights cases in holding that parents may involuntarily commit their children to mental hospitals without a hearing.33 Over time, substantive due process grew beyond parental rights to include rights to contraception,34 interracial35 and same-sex relationships,36 and abortion.37
In recent years, however, the Court has grown skeptical of substantive due process, culminating in the rejection of the right to obtain an abortion in Dobbs v. Jackson Women’s Health Organization.38 Although Dobbs claimed not to threaten other cases, it adopted the reasoning of Washington v. Glucksberg,39 under which the Court will only recognize narrowly articulated rights that are “deeply rooted in this Nation’s history and tradition.”40 No matter the historical pedigree for “parental rights,” Glucksberg would require a narrow articulation of the right at issue—e.g., a “right to teach German” rather than a “right to direct the upbringing of children.” It is often difficult to identify a historical basis for rights at that level of specificity. Dobbs thus left the precedential value of the parental rights cases uncertain.
That was the state of affairs when Mirabelli came to the Court. Relying on Mahmoud, the parents in Mirabelli argued that by failing to inform them that their children were transitioning at school, the government was undermining their ability to instill their religious beliefs in their transgender children.41 Relying on Meyer, they further argued that the government was preventing them from directing the emotional and medical upbringing of their transgender children.42
The Court sided with the parents, vacating the Ninth Circuit’s stay of the district court’s injunction while the government’s appeal proceeds.43 The Court rejected the Ninth Circuit’s characterization of Mahmoud as a “narrow decision focused on uniquely coercive ‘curricular requirements.’”44 The Court argued that the California policies likely imposed greater intrusion on the free exercise rights of religious parents than was at issue in Mahmoud, and that they were likely not sufficiently tailored to survive strict scrutiny because they prevented disclosure even to parents who would not “engage in abuse.”45 Similarly, the Court held that the policies likely interfered with parents’ substantive due process rights to direct the upbringing of their children.46 The Court argued that, just as the parents in Parham had a right to commit their child without the child’s consent, the parents in Mirabelli have a right to direct their child’s mental health care, so they must be made aware of “symptoms of gender dysphoria at school” even without the child’s consent.47
Mirabelli raises many questions that lower courts will wrestle with. For example, if states can prohibit disclosure to abusive parents, who decides which parents are abusive? California’s policies might be acceptable if it bases enforcement on the student’s subjective fear of abuse, for example, but not if California must meet some objective standard for when parents would appear to some reasonable person to be abusive. Also, by what standard is abuse to be measured? If local and state governments can decide for themselves what constitutes abuse of transgender children, California might decide that refusal to use a child’s preferred pronouns is inherently abusive, while another state might decide that respecting a child’s transition is abusive. The sole paragraph discussing the issue in Mirabelli offers no guidance other than to say that the Constitution considers parents “the primary protectors of children’s best interests.”48
As a doctrinal matter, Mirabelli seems to clarify one thing: Contrary to the holdings of the Sixth49 and Ninth Circuits, Mahmoud applies beyond school curriculum to any policy “impos[ing] the kind of burden on religious exercise that Yoder found unacceptable.”50 But that clarification asks as many questions as it answers, because the only case that explains the character of the burden in Yoder was Mahmoud itself. Lower courts still have decades of precedent distinguishing Yoder, but some of those cases seem tenuous in light of Mahmoud. The First Circuit, for instance, has a case upholding a school district’s use of children’s books featuring same-sex couples,51 and another upholding a school’s authority to host a sexually explicit AIDS awareness assembly.52 If Mahmoud was constrained to the curriculum, that would at least let the First Circuit follow the latter precedent, but Mirabelli thrusts that case back into question.
The concurrence of Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, raises further questions about the doctrine of substantive due process. Justice Barrett argues that “Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects.”53 But she also immediately cites Glucksberg for the proper test, under which rights are to be considered at a narrow level of abstraction.54 There would be a wealth of historical support for the right of parents to direct their child’s upbringing, but the same may not be true for a “right of parents to compel disclosure by public schools of a child’s transgender status,” which Glucksberg would require.
Perhaps the most salient question arising from Mirabelli is just how much precedential weight it should be given. Even though Mirabelli is “[a] case raising novel legal questions and arousing strong views,” the Court released an opinion without full briefing, oral argument, judicial conference, or a ruling on the merits from the Ninth Circuit.55 As Justice Barrett wrote in her concurrence, the Court’s “assessment is preliminary,” and should not be treated as resolving the merits.56 Still, because the state of play is so uncertain in the law of the Free Exercise Clause and substantive due process, the Court’s gut reactions may have an outsized impact on lower courts seeking guidance on how to apply the Court’s new rules. In other words, even though the Court purports not to be deciding the issue on the merits, it may have the effect of doing so, as lower courts have little other precedent to follow.
Aidan Keaveney is a Managing Editor of Volume 95 The George Washington Law Review and a Constitutional Litigation Intern at Americans United for Separation of Church and State. He holds a Master’s Degree in Engineering Physics from Appalachian State University and has taught science classes at the high school and college level.
Recommended Citation
Aidan Keaveney, Case Note, Supreme Court Holds Schools Likely Required to Inform Parents of Students’ Gender Identity, Geo. Wash. L. Rev. On the Docket (June 8, 2026), https://www.gwlr.org/mirabelli-parental-rights/.
References
[1] 146 S. Ct. 797 (2026) (per curiam).
[2] Id. at 802.
[3] U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion].”).
[4] U.S. Const. amend. XIV (“[No] State [shall] deprive any person of life, liberty, or property, without due process of law.”).
[5] Mirabelli, 146 S. Ct. at 806 (Kagan, J., dissenting).
[6] Nicolas A. Suarez et al., Disparities in School Connectedness, Unstable Housing, Experiences of Violence, Mental Health, and Suicidal Thoughts and Behaviors Among Transgender and Cisgender High School Students—Youth Risk Behavior Survey, 73 Morbidity & Mortality Wkly. Rep. 50, 56 (2024).
[7] Second Amended Class Action Complaint ¶¶ 11, 164, 170, Mirabelli v. Olson, 820 F. Supp. 3d 1123 (S.D. Cal. 2025) (No. 3:23-cv-768-BEN) [hereinafter Complaint].
[8] See, e.g., id. ¶ 157.
[9] See, e.g., id. ¶ 117.
[10] See id. ¶¶ 2, 7–12, 137, 142, 149, 153; California Becomes First State to Ban Forced Outing in Schools with the Signing of AB 1955, L.A. Cnty. Off. Educ. (July 26, 2024, at 11:29 PDT), https://www.lacoe.edu/news/2024-07-26-california-first-state-ban-forced-outing-schools.
[11] Mirabelli v. Bonta, 146 S. Ct. 797, 802–03 (2026) (per curiam).
[12] Complaint, supra note 7, ¶¶ 24, 119.
[13] Mirabelli, 146 S. Ct. at 801.
[14] Mirabelli v. Olson, 820 F. Supp. 3d 1123, 1159 (S.D. Cal. 2025).
[15] Mirabelli v. Bonta, No. 25-8056, 2026 WL 44874 at *4 (9th Cir. Jan. 5, 2026).
[16] Emergency Application to Vacate Interlocutory Stay Order Issued by the United States Court of Appeal for the Ninth Circuit, Mirabelli v. Bonta, 146 S. Ct. 797 (2026) (No. 25A810) [hereinafter Stay Application].
[17] Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1065 (6th Cir. 1987).
[18] See, e.g., id. at 1069–70.
[19] 406 U.S. 205 (1972).
[20] Id. at 211–12.
[21] See, e.g., Parker v. Hurley, 514 F. 3d 87, 100 (1st Cir. 2008).
[22] 606 U.S. 522 (2025).
[23] Id. at 533.
[24] Id. at 530, 564–65 (quoting Yoder, 406 U.S. at 218).
[25] Id. at 556–59.
[26] 198 U.S. 45 (1905).
[27] 262 U.S. 390 (1923).
[28] Id. at 401.
[29] 268 U.S. 510 (1925).
[30] Id. at 534–35.
[31] See, e.g., Roe v. Wade, 410 U.S. 113, 152–53 (1973).
[32] 442 U.S. 584 (1979).
[33] Id. at 606–07.
[34] Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
[35] Loving v. Virginia, 388 U.S. 1, 12 (1967).
[36] Lawrence v. Texas, 539 U.S. 558, 575–77 (2003); Obergefell v. Hodges, 576 U.S. 644, 675 (2015).
[37] Roe v. Wade, 410 U.S. 113, 153 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992).
[38] 597 U. S. 215, 231 (2022).
[39] 521 U.S. 702 (1997).
[40] Id. at 703.
[41] Stay Application, supra note 16, at 18–21.
[42] Id. at 26–30.
[43] Mirabelli v. Bonta, 146 S. Ct. 797, 802 (2026) (per curiam).
[44] Id. (quoting Mirabelli v. Bonta, No. 25-8056, 2026 WL 44874 at *3 (9th Cir. Jan. 5, 2026)).
[45] Id. at 802–03.
[46] Id. at 803.
[47] Id.
[48] Id. at 802.
[49] Doe No.1 v. Bethel Loc. Sch. Dist. Bd. of Educ., No. 23-3740, 2025 WL 2453836 at *7 (6th Cir. Aug. 26, 2025).
[50] Mirabelli, 146 S. Ct. at 802 (quoting Mahmoud v. Taylor, 606 U.S. 522, 550 (2025)).
[51] Parker v. Hurley, 514 F.3d 87, 106 (1st Cir. 2008).
[52] Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir. 1995).
[53] Mirabelli, 146 S. Ct. at 804 (Barrett, J., concurring).
[54] Id.
[55] Id. at 806 (Kagan, J., dissenting).
[56] Id. at 805 (Barrett, J., concurring).
