Thursday, October 23, 2025
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Ninth Circuit:
Father Lacked Right to Stop Teenaged Son’s Gender Change
Opinion Says UC Doctors Entitled to Qualified Immunity Over Parent’s Claims That They Violated Constitution by Implanting Hormone-Delivery Device in Child Despite Custody Order Saying He Could Prevent Surgeries
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals has held that a Bay Area father’s complaint, asserting constitutional and other claims against doctors at a state university gender clinic over the alleged implantation of a hormone-delivery device into his child—who wished to transition from male to female—without his consent, was properly dismissed.
Saying that the father failed to show a clearly established constitutional right to veto the implantation procedure where both the child and the mother consented, the court found that the physicians were entitled to qualified immunity as state actors as to any constitutional claims.
Tuesday’s memorandum decision, signed by Senior Circuit Judge Sidney Thomas as well as Circuit Judges Jacqueline H. Nguyen and Daniel A. Bress, acknowledged that a family court order prevented the plaintiff from interfering with his child’s hormone therapy but granted him the right to prevent “gender identity related surgery.” However the court said it was “not clear” that the implant procedure was a surgical intervention and declared:
“[The plaintiff] cites no clearly established law creating a parental liberty interest in precluding the procedure at issue here when the other parent and minor child consent to it.”
As to the father’s claim that the doctors negligently inflicted emotional distress by performing the implantation without his consent, the panel opined: “[E]ven if the procedure constituted ‘gender identity related surgery’ under the custody order, defendants’ alleged conduct is not ‘so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ ”
Complaint Filed
The question arose after Edward Hudacko on Oct. 18, 2023, filed a complaint against the Regents of the University of California, University of California at San Francisco (“UCSF”) Drs. Janet Yi Man Lee and Stephen Rosenthal, clinical psychologist Diane Ehrensaft, and the legal director of the facility’s Child and Adolescent Gender Center, Asaf Orr. He also asserted claims against his ex-wife, Christine Underhill, her family law attorney, Nathaniel Bigger, and the child’s court-appointed lawyer, Daniel Harkins.
In the operative complaint, the plaintiff asserted a substantive due process claim under 42 U.S.C. §1983 as well as causes of action for fraud by concealment and intentional infliction of emotional distress.
He pointed to an August 2020 order, signed by Contra Costa Superior Court Judge Joni Hiramoto, which granted Underhill temporary custody of Spencer Hudacko and specified that “Spencer shall be permitted to…commence hormone therapy” but “will not be permitted to undergo any gender identity related surgery” before age 18 “absent the written agreement of both parties…or an order of the court.” Joint custody was ordered relating to the couple’s other child.
Right to Prevent
Edward Hudacko, an engineer with Apple Inc., alleged in the pleading that “Hudacko’s right to prohibit any gender identity related surgery on his son is a fundamental constitutional right arising under the Liberty Clause of the Fourteenth Amendment to the United States Constitution” and that “Defendants formulated, concealed and executed a plan to perform gender identity related surgery on the minor…without the…legally required…consent.”
Hudacko further claimed that the “use of the Supprelin Implant” amounts to “medical experimentation” and asserted that Lee, Rosenthal, and Ehrensaft are members of the World Professional Association for Transgender Health (“WPATH”), which he said promotes a “playbook” of misleading claims about the purported safety and efficacy of “gender affirming care” in children.
Senior District Court Judge Susan Illston of the Northern District of California granted a series of defense motions to dismiss between August and November of last year. Judgment was entered in favor of the defendants on Nov. 26—by which time the child had reached the age of majority and become a female.
Edward Hudacko appealed the orders dismissing, without leave to amend, his §1983 claims against Hawkins, Bigger, Underhill, and the individual UCSF defendants as well as his fraudulent concealment and intentional infliction of emotional distress (“IIED”) causes of action.
Qualified Immunity
Thomas, Nguyen, and Bress noted that the defense of qualified immunity protects public officials from liability for civil damages so long as their conduct does not violate clearly established statutory or constitutional rights. As to Underhill, Harkins, and Bigger, they acknowledged that “a plaintiff may demonstrate that a private individual was a de facto state actor” by showing a conspiracy or joint action with the government agent. However, they said:
“The [operative complaint] cites UCSF’s progress notes that Underhill was working with Bigger, Harkins, and Orr to ‘achieve resolution in the near future,’ but absent other facts, these notes do not in any way show an improper scheme or conspiracy to violate Hudacko’s rights. There is nothing surprising or nefarious about Harkins and Bigger, as the lawyers representing Minor and Underhill respectively, working with Underhill as permitted by the custody order.”
Turning to the UCSF defendants, the judges opined:
“The district court correctly concluded that the UCSF Individuals are entitled to qualified immunity because Hudacko’s alleged right was not clearly established. Although the rights of parents in the ‘care, custody, and control of their children’ is a well-established liberty interest under the Fourteenth Amendment,…Hudacko’s right cannot be defined that broadly because the custody order stripped him of almost all his parental rights. Under the custody order, Underhill had sole medical decision-making authority over Minor with the exception of ‘any gender identity related surgery,’ which required Hudacko’s consent.”
Explicit Language
They added:
“Hudacko cites no clearly established law under similar facts. Instead, he contends that the ‘explicit language’ of the custody order provision clearly establishes his right. But it was not clear the implant procedure fell within [the] ‘surgery’ exception in the custody order….And putting aside the custody order, Hudacko cites no clearly established law creating a parental liberty interest in precluding the procedure at issue here….”
Addressing the dismissal of the fraudulent concealment cause of action, they said:
“Hudacko alleges that Drs. Lee, Ehrensaft, and Rosenthal…owed him a duty to disclose because the custody order named UCSF explicitly as Minor’s medical provider and granted them ‘special decision making powers.’ This contention is unsupported because the custody order…only conditions Underhill’s authority to consent to hormone therapy for Minor on UCSF recommending that treatment. Thus, the custody order does not create a ‘contractual agreement’ between Hudacko and UCSF that gives rise to a duty to disclose.”
As to the intentional infliction of emotional distress claim, the jurists wrote:
“On appeal, Hudacko does not meaningfully argue that he alleged outrageous conduct required for an IIED claim. Instead, Hudacko contends that whether the implant procedure ‘could reasonably [be] interpreted to be’ hormone therapy was a factual dispute that should not have been decided at the pleading stage. But the district court did not decide that the implant procedure was in fact hormone therapy under the custody order. Instead, the district court only held that even if the implant procedure could be regarded as gender identity related surgery, the UCSF Individuals’ conduct cannot be outrageous because the implant procedure ‘could reasonably [be] interpreted to be’ hormone therapy under the custody order.”
The case is Hudacko v. Regents of the University of California, 24-7360.
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