Does California Law Deny Parents’ Right to Opt Out of ‘Gender Education’?

The issue was spotlighted by a recent Orange County Board of Education legal memo, which says a 2016 state law prohibits withdrawal of children from classroom instruction on homosexuality and transgenderism.

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ORANGE COUNTY, Calif. — Parents with children in California’s public schools may not be able to opt their children out of lessons about gender identity, “gender expression” or sexual orientation.

That position is spelled out in a legal opinion given March 29 to the Orange County Board of Education by the county education department’s attorney.

The memo argues that a 2016 state law that overhauled the state’s sex-education curriculum may allow parents to opt their children out of lessons about sexual health and sexually transmitted diseases, but not for classroom instruction on issues such as homosexuality or transgenderism.

“Things have been headed in this direction for years. It’s totally out of hand,” said William May, president of the California-based Catholics for the Common Good, a lay apostolate for the evangelization of culture that also sponsors The Marriage Reality Movement.

May told the Register that advocates who supported Proposition 8 — the 2008 state ballot amendment that defined marriage as the union of one man and one woman — warned that sexual orientation and gender identity would be taught in classrooms if marriage was redefined.

“All this is being integrated into other courses, not just sex education; but it’s being integrated into history and literature in the classroom. It’s essentially getting to the point where parents will have to opt out of public education,” May said.

Kiersten Lynch, a resident of Irvine, California, and a mother of four children in the local public schools, said she was shocked to discover last year that her daughter, while in seventh grade, was exposed to lessons that normalized transgender identity and that emphasized the non-procreative aspects of certain sexual acts.

“We were so appalled at what was being taught in the sex-ed curriculum. It was over the top,” Lynch told the Register.

In class one day, Lynch said the students watched a PBS video that portrayed transgenderism in Hawaii in a positive light and that blamed American Christian missionaries for spreading fear and bigotry. In another lesson, Lynch’s daughter found herself in the minority among her classmates when she was made to take a stand on whether transgender people could be good parents for young children.

“She was not trying to pass judgment on these parents, but, of course, she was labeled ‘homophobic’ — while her intention was only for young children to be brought up in the healthiest home,” Lynch said.


The State Law

Signed into law by Gov. Jerry Brown in 2015, the California Healthy Youth Act took effect in 2016 and requires that all public middle and high schools in the state teach “unbiased and medically accurate” sex education, including lessons on birth control, abortion, HIV and AIDS, as well as sexual orientation and gender identity.

Under the law, abstinence cannot be discussed in isolation from other methods of preventing pregnancy and sexually transmitted diseases, though the law does require that instruction and materials include information that explains abstinence is the only sure way to prevent HIV, sexually transmitted infections and unintended pregnancies.

The California Catholic Conference did not take a position on the California Healthy Youth Act because the law includes provisions that allow parents to review the course curriculum at the beginning of the year, to be notified when lessons are going to be taught and to opt their children out of those lessons.

“It allowed them to be notified, to inspect and opt out of all or part of it. It’s our understanding that it’s still a fact of the comprehensive sex-education curriculum,” said Raymond Burnell, the director of education and environmental stewardship for the California Catholic Conference.

Burnell declined to comment on the legal memo in Orange County, telling the Register that he was unclear on the analysis and did not want to comment on a local matter.

He added, though, that the conference would “certainly look at” any attempts to restrict parental rights under the law.

Said Burnell, “Anything that would threaten in state law parental rights or responsibilities, we’d be concerned, yes.”


Opt-Out Limitations

In his March 29 memo, Ronald Wenkart, the general counsel for the Orange County Department of Education, told the county’s board of education that the law’s opt-out provision “does not apply to instruction, materials or programming that discusses gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships or family, and does not discuss human reproductive organs.”

Wenkart said parents who disagree with the state’s position on teaching about homosexuality, same-sex relationships or gender identity “may not excuse their children from this instruction,” though parents can still “advise their children that they disagree with” the content matter.

A spokeswoman for the California Department of Education declined to comment on Wenkart’s memo, but provided the Register with an excerpt from the law that clearly identifies the same subject matters listed in Wenkart’s memo as being exempt from the opt-out provision.

To buttress his argument, Wenkart’s memo also cites court rulings that he says clearly state that parents do not have a constitutional right to direct how a school district or a public-school teacher instructs or disciplines their child, and cannot dictate a school’s curriculum, hiring practices, the hours of the school day, its dress code or extracurricular activities.

“Parents do not have a constitutional right to excuse their children from portions of the school curriculum that they find objectionable,” Wenkart wrote.

Lynch told the Register that she and other parents objected to Wenkart’s “atrocious” memo and added that some school board meetings have been “standing-room only.”

“It’s been a battle,” Lynch said. “The parents feel powerless.”


Church Teaching

Catholic teaching holds that parents are the primary educators of their children and that society should support families in that role. The emphasis on parental rights, however, does not mean that government has no role in setting educational policy and standards.

Gravissimum Educationis, Pope Blessed Paul VI’s 1965 declaration on Christian education, says it is the state’s responsibility to ensure that teachers are well-trained and that schools look after the health of students and in general “promote the whole school subject,” while keeping in mind the principle of subsidiarity.

In a background document posted on its website, the California Catholic Conference concedes that parents’ rights, while fundamental, “are not absolute.”

However, the Church has emphasized that education regarding sexuality is a matter of special sensitivity that should be undertaken only with the full consent of parents.

The Pontifical Council for the Family’s 1995 document, “The Truth and Meaning of Human Sexuality: Guidelines for Education Within the Family,” states that “any educative activity, related to education for love and carried out by persons outside the family, must be subject to the parents’ acceptance of it and must be seen not as a substitute but as a support for their work. In fact, ‘Sex education, which is a basic right and duty of parents, must always be carried out under their attentive guidance, whether at home or in educational centers chosen and controlled by them.’”

Lynch, who is an evangelical Christian and is active in pro-life ministry, told the Register that Orange County’s public schools do not make it convenient for parents to review the new sex-education curriculum, adding that parents have to go to their child’s school to review a copy.

“It’s not very accessible,” said Lynch, who has prayed outside Planned Parenthood facilities and added that she sees the abortion provider’s “fingerprints all over” the new sex-education curriculum.

Said Lynch, “It’s in the verbiage that is used. The materials make sure that every child knows where their local clinic is, and, of course, it never tells about killing a child. It always uses the euphemism to ‘terminate a pregnancy.’”


State Debate

The question of how much power the state can use to restrict parental rights has been a long-running subject of major debate in California.

In its background document, the state’s Catholic conference lists several examples to illustrate a “troubling erosion of parental rights in California,” noting that a young girl in the state can receive an abortion without informing her parents.

“This is the result of collectivism. It’s a tyranny,” May said. “Quite honestly, I think we need to step back and take a fresh start for addressing this, because what we’ve been doing up until now has not worked, and things have continually gotten worse.”

However, parents in several California public-school districts have tried to fight back in recent weeks against the new sex-education curriculum. There have been reported parent-led protests in Fremont and San Diego.

“I’m so encouraged that parents are starting to stand up and protest,” May said. “It’s so critical to educating other people of what’s happening to their children, and it’s important for parents to unite and rise up, to stand up and reinforce each other.”

Lynch said the sex-education curriculum has “drastically” transformed the school district in Orange County. She added that the curriculum materials for parental review in the schools contain an American Civil Liberties Union letter that highlights the limits of parental rights.

“It’s definitely all part of this indoctrination,” Lynch said. “And many parents are unaware of what is going on and how bad the curriculum really is. It’s unlike anything I’ve ever seen.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.