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Court of Appeal:
LGBTQ Indoctrination of School Children Is Protected Speech
Justices Say Private Institute That Staged Multi-Day Camping Event for Fifth Graders Without Revealing Beforehand That Discussions of Gender-Identity Would Take Place Is Entitled to Partial Granting of Its Anti-SLAPP Motion
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday partially reversed an order denying an anti-SLAPP motion brought by an outfit that conducted a multi-day overnight event—billed as involving “hands-on science in a camp environment”— at which, according to the complaint, fifth-graders were indoctrinated with LGBTQ viewpoints.
Justice Thomas A. Delaney authored the opinion which declares that “the activity on which some of plaintiffs’ claims are based falls within the scope of the anti-SLAPP statute’s protections” and that “as a matter of law, intentional infliction of emotional distress and negligent infliction of emotional distress liability cannot arise from the type of alleged exposure to gender identity related matters.”
Orange Superior Court Judge Nathan N. Vu denied the special motion to strike brought pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, by Pali Institute, Inc. It was sued, through their parents ad litem, by minors Emma Sandoval and Julia Johnson.
The camping event was held in cooperation with the children’s elementary school.
Factual Recitation
The plaintiffs/respondents recited in their brief on appeal:
“In early 2022, Respondents attended the outdoor science camp at Pali….Despite not being informed that LGBTQ-related material would be taught at the science camp, immediately upon their arrival at Appellant’s science camp, the children, including Respondents, were forced into an unexpected lecture on gender pronouns, spearheaded by a counselor named Daisy, who later became Johnson’s personal counselor….Each counselor aggressively introduced themselves with their preferred pronouns and threatened the children with disciplinary action if they failed to use these pronouns incorrectly.”
The brief continues:
“Johnson observed that one of the children was explicitly warned that he would be ‘in trouble’ if he continued to use the pronoun ‘he’ for his counselor, who demanded to be addressed by ‘they/them’ pronouns….This forceful imposition of a gender identity lesson intimidated and caused discomfort among the children, including Respondents, who were completely unacquainted with the concept of preferred pronouns….
“The inappropriate lessons on gender identity were just the tip of the iceberg. Johnson, in her vulnerability, feeling scared and missing her mother, asked her camp counselor, Daisy, to call home on several occasions….Johnson’s repeated requests were outrightly dismissed by Daisy, who, rather than acknowledging her feelings, belittled them as ‘stupid.’…Daisy further confided in Johnson about being a disappointment to her own parents, adding to the child’s distress.”
‘Catchall’ Provision
The defendant relied on the catchall provision of §425.16 which renders protected “any other conduct in furtherance of the exercise of the constitutional right of… free speech in connection with a public issue or an issue of public interest.”
Delaney—who was joined by Acting Presiding Justice Joanne Motoike and Justice Maurice Sanchez—wrote:
“With the amount of public discourse in the recent years at all levels of society nationwide—from government to local communities and everything in between—concerning gender identity, the topic and matters related to it (e.g., use of personal pronouns) are undoubtedly issues of public interest….
“We likewise have no trouble concluding the discussion of gender identity by those responsible for students in a public school setting has a sufficiently functional relationship to the broader public debate to qualify as protected activity under the catchall provision.”
Rejecting the contention that liability arises from a failure to reveal prior to the event the intended subject matter of discussions, Delaney declared:
“Because plaintiffs’ alleged emotional distress is, at least in part, a result of the particular subject matter of which parents were allegedly not informed, the failure to inform claim arises from protected activity.”
With respect to the alleged refusal to allow students to phone their parents, he said:
“To the extent these claims—including any alleged emotional distress—are unconnected to the subject matter of anything that took place at camp, they do not arise from protected activity. Thus, they may not be stricken pursuant to the anti-SLAPP statue….Whether such claims are legally viable and, if so, whether plaintiffs will be able to demonstrate liability, are matters not before us and properly left for another day.”
Delaney pointed to certain other claims that survive the anti-SLAPP motion.
The justice said that evidence put forth by the plaintiffs consisted of inadmissible hearsay and that Vu “erred by failing to grant the anti-SLAPP motion with respect to the claims which we identify as arising from protected activity”—namely, claims for intentional and negligent infliction of emotional distress “based on the exposure of plaintiffs to gender identity discussions” and for intentional infliction “based on providing such exposure without first informing parents.”
He continued:
“Even it we assumed, arguendo, plaintiffs produced admissible evidence to factually substantiate their claims, the claims would not be legally sufficient given California’s public policy concerning gender identity.”
Delaney elaborated:
“[T]he alleged conduct which we must evaluate here is the exposure of 10 and 11 year olds to gender identity related discussions in a public school setting and the provision of such exposure without parents first being informed. Plaintiffs provide no argument or legal authority explaining how such conduct could be sufficiently outrageous to support an [intentional infliction of emotion distress] cause of action, or how, under the circumstances, a duty exists that could support an [negligent infliction of emotion distress] claim. In contrast, we find existing California public policy precludes such potential liability.”
Concurring Opinion
Delaney remarked in a concurring opinion:
“Opening the door to emotional distress tort liability based on school setting discussions of gender identity aimed at establishing a more inclusive school environment would cast a dark shadow over a matter through which people seek to express their subjective, deep-core sense of self….It would convey a message of intolerance of those perceived as different, and it would work to foster discriminatory attitudes towards them.
“As history teaches us, even though such biases may nevertheless persist in society, the law simply cannot give effect to them.”
The case is Sandoval v. Pali Institute, Inc., G063037.
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