I feel it's unfortunate that the judge, in his decision, lumps "gender incongruence" right in with "gender dysphoria". He is clearly talking in the rest of the quote about a concern for mental illness. But gender incongruence without gender dysphoria is NOT a mental illness. And, in fact, it is statistically a pretty good indicator of likely same-sex attraction (which means the unnecessary addition of it in the order actually does bring up concerns over "outing" gay students when, as you noted, that's not in the bill). Since gender incongruence isn't a mental illness, there is not even a list of symptoms or attributes defining it. What is a gendered thing to some-black nail polish or eye liner on a boy or a shaved head for non-medical reasons on a girl-is simply self-expression, teen rebellion, or perhaps an affiliation with goth or punk subculture to others.
Those issues aside, gender incongruence is a normal variation in personality and style. Lumping it in with "signs of mental illness" seems to actually be feeding into the gender ideology idea that if you're a tomboy or a feminine male, then there is something wrong with you and you can't be your biological sex. It's really too bad that the judge in charge of this case sees this as the same as gender dysphoria, which is a mental illness and is associated with serious risks, including self harm.
On a separate note, the emphasis on informing parents about mental illness interests me for another reason: while it's of course true that one's observable actions and words in public are not covered by a right to privacy (whether one is a minor or an adult), minors over age 12 actually DO have a right to privacy in matters of sexual and mental health in many states. I'd be shocked if CA wasn't one, though please feel free to tell me if you know differently. But, that opens quite the can of worms as the two concepts: that there is no right for a teen over the age of mental health consent to request confidentiality from teachers because teachers should tell parents about signs of possible mental illness, but there IS a long-established right to confidentiality about the exact same issue from health care providers because in those states teens do in fact have confidentiality in mental and sexual health matters. Seems quite contradictory.
I'm curious to see if that becomes an issue as this works it's way through the courts. Thinking as a provider, it would be quite the conundrum for a parent to bring a teen, over the age of consent for mental health, in for care because a teacher expressed concerns, and then for me to be legally barred from talking about those concerns with the parent because the state has determined that teens of a certain age should be allowed to manage their own mental health matters and choose who knows about them. I imagine the parent would be understandably frustrated if one professional tells them their child is mentally ill and then the mental health provider says "sorry, but i can't give you my opinion or tell you my treatment plan".
Thanks for the comment Jen. It's important to remember that judges aren't experts in medical and health care issues, so they rely on experts involved with the case to understand the terms. In the Mirabelli v Olson case for the Escondido school district, the expert, Dr. Erica Anderson, defined gender dysphoria using the APA's DSM-5 definition of "clinically significant distress or impairment related to gender incongruence" and goes on to explain what you said - that "no everyone who is gender variant experiences gender dysphoria, in the sense of clinically significant distress." You can read her full Declaration here: https://storage.courtlistener.com/recap/gov.uscourts.casd.757886/gov.uscourts.casd.757886.5.2.pdf
I think the bottom line is that a teacher is not trained to understand the difference or know what a child is experiencing if they ask to change their name or use a different bathroom, so having a policy which requires the teacher to keep that request a secret is much more problematic that requiring a teacher to inform the parents. A policy of secrecy keeps the most important and caring adults in that child's life out of the conversation entirely, and the child is left to the whim of one or more government employees instead.
On the issue of kids 12 and over having the right to privacy with their own health care, that is true in California, but the situations where a parent isn't informed are limited to very specific circumstances related to potential issues of abuse, etc. at home. In all of the cases I've known about where children were experiencing mental health issues, the parents were fully informed and involved in all of the decisions.
Thank you for your reply! So, I will preface this by saying that I have never lived nor practiced in CA or even in any neighboring states so I have no personal experience with how the law there is actually implemented in practice. Here is a summary I found of current CA law regarding minors consenting to mental health services:
"Family Code § 6924 “A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis or to residential shelter services, if both of the following requirements are satisfied: (1) The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services. AND (2) The minor (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or (B) is the alleged victim of incest or child abuse.” (Cal. Family Code § 6924.) Health & Safety Code § 124260 “[A] minor who is 12 years of age or older may consent to [outpatient] mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.” (Cal. Health & Saf. Code § 124260.) "
Couple comments: in every state, regardless of whether there are any minor consent laws in place, child abuse changes the picture completely. That is not what I'm referring to here, though since you brought it up I would note that it certainly isn't unheard of now for minors to allege varying levels of "feeling unsafe at home" with gender dysphoria. I do wonder how policies mandating parental notification might impact the number of kids who make such allegations in schools and, consequently since school staff are mandatory reporters, the number of CPS reports against these families. I do not envy the CPS caseworkers placed in the middle of a minor teen alleging some form of abuse with no supporting evidence, and possibly threatening self-harm, and parents who deny the same. Very difficult situation.
Second, the statutes quoted above look quite similar to those in states where I have practiced. Over the years, I have found mental health professionals (not all, but in general) more willing to document that a minor is mature and that parental notification would be inappropriate or harmful. And in this statute again we see a reference to self-harm, so again I will note that this is a common threat already in this population. But, just looking at the text, the laws allow for confidentiality in quite a few more situations than those you described. Again, I do not have personal experience in CA nor do I doubt yours that you explained. However, the fact that parents were involved in the cases you're aware of isn't necessarily at odds with the plain text reading of the law: first, if a minor is getting treatment without parental knowledge, the parents obviously wouldn't know to talk about it and the child is likely to be more secretive about it as well, meaning there may be some selection bias going on here: those families who discuss it with their friends or family are those where the minor probably is not consenting without parental knowledge. Also, though, in my experience, mental health professionals who evaluate or begin treating a minor requesting confidentiality often-though not always by any means-determine at some point that, especially for younger teens, it may actually be helpful for the child to be more open with parents. It's not terribly uncommon to actually discuss with the child at least a limited disclosure, for the child's own sake. Some children agree, others do not.
There is also the issue of payment: children on their parents' insurance, especially those living in wealthier areas, may be pretty limited in their ability to obtain services without their parents finding out since those areas tend to have fewer free or sliding scale providers and also tend to be more expensive in terms of cash pay fees for, well, many things, but mental health treatment is certainly one. Thus, it's financially not feasable for those minors to get care outside their parent's insurance policy, and the insurance documents will typically "out"them pretty fast.
This brings me, though, to another important question I have: that of licensed school counselors, psychologists, social workers, as well as school-based health and mental health clinics. I'm curious how the laws quoted above might conflict with mandatory parental notification laws or policies for school staff when said staff member is both a licensed mental health professional AND on the school payroll. Seems they would be stuck between a rock and a hard place, legally. (I may be alone in this, but I would be very interested in content from a discussion with a CA school counselor or social worker about this!).
Maybe practice in CA and perhaps case law has narrowed the confidentiality provisions that appear in the law quite a bit. It would surprise me a little as my current state is not as liberal as CA legally but has similar law and in practice minors do access mental health care pretty regularly if and when there is an affordable option.
Re: gender incongruence vs gender dysphoria, my understanding is exactly as presented in the expert witness testimony you quoted from Dr Anderson. Which is why I'm dismayed that the judge chose to include both in his ruling: he appears to be resting on the argument that parents should know about mental health problems (even potential future ones, per his writing-how nice it would be if it were so easy to know about those: the Trump rally shooting may never have happened). So, for him to throw a mental health issue in the same catagory as a normal variant seems unfortunate and contradictory. My concern isn't so much kids requesting a different bathroom or name; my concern is that the judge's ruling seems to imply teachers should be reporting ANY gender "incongruence" (as though any of us would agree on the exact boundaries of such a term anyway), along with true gender dysphoria. I doubt that that's actually what will come out of this case if the parent groups ultimately win (and I certainly hope I'm not wrong about that). I just think it's unfortunate that he even went there. Again, if he's talking about mental illness being important for parents to know about, the expert witness made clear that gender incongruence alone isn't that. So why did he have to include it? It's more of a quibble with the text of the decision than a concern for any real-life implications of it at this stage.
I hope that made some semblance of sense. Thank you again for your reply!
Thank your for this thorough analysis, Scott!
You & Scott are national treasures! So honored to have your contributions here.
I feel it's unfortunate that the judge, in his decision, lumps "gender incongruence" right in with "gender dysphoria". He is clearly talking in the rest of the quote about a concern for mental illness. But gender incongruence without gender dysphoria is NOT a mental illness. And, in fact, it is statistically a pretty good indicator of likely same-sex attraction (which means the unnecessary addition of it in the order actually does bring up concerns over "outing" gay students when, as you noted, that's not in the bill). Since gender incongruence isn't a mental illness, there is not even a list of symptoms or attributes defining it. What is a gendered thing to some-black nail polish or eye liner on a boy or a shaved head for non-medical reasons on a girl-is simply self-expression, teen rebellion, or perhaps an affiliation with goth or punk subculture to others.
Those issues aside, gender incongruence is a normal variation in personality and style. Lumping it in with "signs of mental illness" seems to actually be feeding into the gender ideology idea that if you're a tomboy or a feminine male, then there is something wrong with you and you can't be your biological sex. It's really too bad that the judge in charge of this case sees this as the same as gender dysphoria, which is a mental illness and is associated with serious risks, including self harm.
On a separate note, the emphasis on informing parents about mental illness interests me for another reason: while it's of course true that one's observable actions and words in public are not covered by a right to privacy (whether one is a minor or an adult), minors over age 12 actually DO have a right to privacy in matters of sexual and mental health in many states. I'd be shocked if CA wasn't one, though please feel free to tell me if you know differently. But, that opens quite the can of worms as the two concepts: that there is no right for a teen over the age of mental health consent to request confidentiality from teachers because teachers should tell parents about signs of possible mental illness, but there IS a long-established right to confidentiality about the exact same issue from health care providers because in those states teens do in fact have confidentiality in mental and sexual health matters. Seems quite contradictory.
I'm curious to see if that becomes an issue as this works it's way through the courts. Thinking as a provider, it would be quite the conundrum for a parent to bring a teen, over the age of consent for mental health, in for care because a teacher expressed concerns, and then for me to be legally barred from talking about those concerns with the parent because the state has determined that teens of a certain age should be allowed to manage their own mental health matters and choose who knows about them. I imagine the parent would be understandably frustrated if one professional tells them their child is mentally ill and then the mental health provider says "sorry, but i can't give you my opinion or tell you my treatment plan".
Thanks for the comment Jen. It's important to remember that judges aren't experts in medical and health care issues, so they rely on experts involved with the case to understand the terms. In the Mirabelli v Olson case for the Escondido school district, the expert, Dr. Erica Anderson, defined gender dysphoria using the APA's DSM-5 definition of "clinically significant distress or impairment related to gender incongruence" and goes on to explain what you said - that "no everyone who is gender variant experiences gender dysphoria, in the sense of clinically significant distress." You can read her full Declaration here: https://storage.courtlistener.com/recap/gov.uscourts.casd.757886/gov.uscourts.casd.757886.5.2.pdf
I think the bottom line is that a teacher is not trained to understand the difference or know what a child is experiencing if they ask to change their name or use a different bathroom, so having a policy which requires the teacher to keep that request a secret is much more problematic that requiring a teacher to inform the parents. A policy of secrecy keeps the most important and caring adults in that child's life out of the conversation entirely, and the child is left to the whim of one or more government employees instead.
On the issue of kids 12 and over having the right to privacy with their own health care, that is true in California, but the situations where a parent isn't informed are limited to very specific circumstances related to potential issues of abuse, etc. at home. In all of the cases I've known about where children were experiencing mental health issues, the parents were fully informed and involved in all of the decisions.
Thank you for your reply! So, I will preface this by saying that I have never lived nor practiced in CA or even in any neighboring states so I have no personal experience with how the law there is actually implemented in practice. Here is a summary I found of current CA law regarding minors consenting to mental health services:
"Family Code § 6924 “A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis or to residential shelter services, if both of the following requirements are satisfied: (1) The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services. AND (2) The minor (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or (B) is the alleged victim of incest or child abuse.” (Cal. Family Code § 6924.) Health & Safety Code § 124260 “[A] minor who is 12 years of age or older may consent to [outpatient] mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.” (Cal. Health & Saf. Code § 124260.) "
Couple comments: in every state, regardless of whether there are any minor consent laws in place, child abuse changes the picture completely. That is not what I'm referring to here, though since you brought it up I would note that it certainly isn't unheard of now for minors to allege varying levels of "feeling unsafe at home" with gender dysphoria. I do wonder how policies mandating parental notification might impact the number of kids who make such allegations in schools and, consequently since school staff are mandatory reporters, the number of CPS reports against these families. I do not envy the CPS caseworkers placed in the middle of a minor teen alleging some form of abuse with no supporting evidence, and possibly threatening self-harm, and parents who deny the same. Very difficult situation.
Second, the statutes quoted above look quite similar to those in states where I have practiced. Over the years, I have found mental health professionals (not all, but in general) more willing to document that a minor is mature and that parental notification would be inappropriate or harmful. And in this statute again we see a reference to self-harm, so again I will note that this is a common threat already in this population. But, just looking at the text, the laws allow for confidentiality in quite a few more situations than those you described. Again, I do not have personal experience in CA nor do I doubt yours that you explained. However, the fact that parents were involved in the cases you're aware of isn't necessarily at odds with the plain text reading of the law: first, if a minor is getting treatment without parental knowledge, the parents obviously wouldn't know to talk about it and the child is likely to be more secretive about it as well, meaning there may be some selection bias going on here: those families who discuss it with their friends or family are those where the minor probably is not consenting without parental knowledge. Also, though, in my experience, mental health professionals who evaluate or begin treating a minor requesting confidentiality often-though not always by any means-determine at some point that, especially for younger teens, it may actually be helpful for the child to be more open with parents. It's not terribly uncommon to actually discuss with the child at least a limited disclosure, for the child's own sake. Some children agree, others do not.
There is also the issue of payment: children on their parents' insurance, especially those living in wealthier areas, may be pretty limited in their ability to obtain services without their parents finding out since those areas tend to have fewer free or sliding scale providers and also tend to be more expensive in terms of cash pay fees for, well, many things, but mental health treatment is certainly one. Thus, it's financially not feasable for those minors to get care outside their parent's insurance policy, and the insurance documents will typically "out"them pretty fast.
This brings me, though, to another important question I have: that of licensed school counselors, psychologists, social workers, as well as school-based health and mental health clinics. I'm curious how the laws quoted above might conflict with mandatory parental notification laws or policies for school staff when said staff member is both a licensed mental health professional AND on the school payroll. Seems they would be stuck between a rock and a hard place, legally. (I may be alone in this, but I would be very interested in content from a discussion with a CA school counselor or social worker about this!).
Maybe practice in CA and perhaps case law has narrowed the confidentiality provisions that appear in the law quite a bit. It would surprise me a little as my current state is not as liberal as CA legally but has similar law and in practice minors do access mental health care pretty regularly if and when there is an affordable option.
Re: gender incongruence vs gender dysphoria, my understanding is exactly as presented in the expert witness testimony you quoted from Dr Anderson. Which is why I'm dismayed that the judge chose to include both in his ruling: he appears to be resting on the argument that parents should know about mental health problems (even potential future ones, per his writing-how nice it would be if it were so easy to know about those: the Trump rally shooting may never have happened). So, for him to throw a mental health issue in the same catagory as a normal variant seems unfortunate and contradictory. My concern isn't so much kids requesting a different bathroom or name; my concern is that the judge's ruling seems to imply teachers should be reporting ANY gender "incongruence" (as though any of us would agree on the exact boundaries of such a term anyway), along with true gender dysphoria. I doubt that that's actually what will come out of this case if the parent groups ultimately win (and I certainly hope I'm not wrong about that). I just think it's unfortunate that he even went there. Again, if he's talking about mental illness being important for parents to know about, the expert witness made clear that gender incongruence alone isn't that. So why did he have to include it? It's more of a quibble with the text of the decision than a concern for any real-life implications of it at this stage.
I hope that made some semblance of sense. Thank you again for your reply!