SAN DIEGO - An Encinitas school district cannot force fifth graders to participate in a program that requires them to discuss gender identity questions with kindergarten "buddies" at their school, a federal judge has ruled.
On May 12, U.S. District Judge M. James Lorenz ruled in favor of parents of fifth grade students who had sued Encinitas Union School District for compelling their students to read a children's book discussing gender identity to kindergarten students and participate in other activities related to questioning traditional sex and gender, without first notifying parents or providing an opportunity for parents to opt their children out of the activities.
The parents, who religiously objected to the gender identity aspects of the program, asserted the school's policy related to the so-called "buddy program" violated their children's First Amendment rights, by compelling them to speak a state-mandated message they disagreed with.
In his ruling, Judge Lorenz said the school's decisions to include the pro-transgender activities in their programs "reflect an admirable purpose" of opposing gender discrimination.
"However, they do not meet the requisite narrow tailoring to justify interference with students’ freedom of speech," Lorenz wrote.
The case landed in federal court in September 2024, when two sets of parents sued the school district in Encinitas on behalf of their fifth-grade students, identified only as P.D. and S.E.
According to court documents, the parents of S.E. have since withdrawn that child from the Encinitas public schools.
The case centered on the Encinitas school district's so-called "buddy program," described as "a weekly class pairing younger and older students" to allow the older students to "mentor" the younger students. According to court documents, the program is "mandatory."
To this point, the "buddy program" has "involved art or garden projects and any books read in the class were selected by the students." Further, according to court documents, "the school sent parents a weekly newsletter listing the books the students were reading each week."
However, in May 2024, in the waning weeks of that school year, instructors overseeing the "buddy program" decided to change the format of the program, and required the fifth grade students to read a book titled "My Shadow is Pink." The students were first required to read the book themselves, and then read it aloud to their kindergarten student "buddies."
In the book, the protagonist is a boy who discovers his "shadow" - which the book says represents "your inner-most you" - is pink, while other boys' shadows are blue. The boy then wears a dress to school. The boy's father initially objects, but eventually "comes to accept his son's 'pink shadow' not as a phase but as reflecting the boy's 'inner-most self.'"
While the book doesn't use the word "gender," the judge noted the author of the book "describes it as a children's book on the subject of gender identity."
The school further admitted the book "does address gender identity."
As part of the "buddy program" exercise, fifth graders were also required to ask their kindergarten "buddies" to select a color and then help the kindergarteners draw their "shadow" on the sidewalk in the color of their choice.
Unlike in the past, however, the school did not communicate with parents concerning the "My Shadow Is Pink" activities.
Further, when parents learned of the activities, the school refused to allow students to opt out.
In court, the Encinitas district asserted they had no legal obligation to allow students to opt out, because the district argued the law only required them to notify parents and allow opt outs if the discussion of gender identity arose as part of a formal school health class.
In his ruling, however, Lorenz said that legal argument fell short. He agreed with parents that the school's exercise essentially forced students who may otherwise religiously object to express and affirm a message, in violation of their First Amendment rights.
The judge further rejected school officials' arguments that requiring schools to notify parents and allow for students to opt out would trespass on the schools' legal prerogative to set curriculum and policies.
"Contrary to (the Encinitas district's) contention, (the parents) are not requesting a change of curriculum or implementation of new procedures," Lorenz wrote. "Until 'My Shadow Is Pink' buddy class, the buddy program involved art or garden projects, and the school sent parents a weekly newsletter listing the books and activities of the week. The topics covered in health instruction were not part of the buddy program.
"When health instruction included topics such as gender identity, parents received notice and could opt out pursuant to California Education Code Section 51240. A controversy arose only when gender identity, a topic covered in health instruction, was introduced to the buddy program, but parents did not receive notice and were not allowed to opt out."
In granting the requested injunction, the judge ordered that “buddy program class activities and materials shall not cover gender identity topics covered in health instruction, unless Defendants provide parents with advance notice and an opportunity to opt out.”
The parents were represented by attorneys from the First Liberty Institute, of Plano, Texas, which litigates cases related to religious freedom; and the National Center for Law and Policy, a conservative constitutional legal advocacy organization, of Escondido, California.
In a statement, attorneys representing the parents hailed the ruling.
“The court’s decision affirms that schools have a duty to notify parents and provide opt-outs when controversial gender ideology is taught, and they cannot avoid that duty by teaching the material in a mentoring program instead of health class," said Dean Broyles, President of the National Center for Law & Policy said.
“No child should be forced to speak a message that violates his religious convictions,” said Nate Kellum, Senior Counsel for First Liberty Institute. “We are grateful for the court’s decision and will continue to fight to ensure that elementary children are not forced to participate in lessons about gender identity that violate their faith.”