After Mirabelli, The Other Foote Did Not Drop

Key Takeaways

• Mirabelli v. Bonta blocked California's secret child‑transition policy.
• Justice Kagan urged certiorari for Foote, but Court denied it.
• Foote denial followed five relists despite many similar due‑process cases.
• Court GVR’d Smith v. Scott, showing willingness to rely on emergency rulings.
• Split reveals uncertainty over Supreme Court’s handling of transgender school policies.

Pulse Analysis

The Mirabelli v. Bonta decision marked a rare use of the Supreme Court’s emergency docket to halt a state‑run program that allowed minors to transition without parental knowledge. By framing the issue as a substantive due‑process violation, the Court sent a clear signal to states that covert gender‑identity policies will face heightened scrutiny, even when presented on a fast‑track docket. This ruling also revived scholarly debate over the proper balance between judicial efficiency and thorough constitutional analysis.

Justice Kagan’s dissenting note underscored a growing frustration within the Court about shadow‑docket shortcuts. She pointed to the pending certiorari petition in Foote v. Ludlow School Committee, a First Circuit case mirroring Mirabelli’s facts—schools required to use students’ preferred names and pronouns while barring disclosure to parents. Despite multiple relists, the Court declined to grant cert, opting instead for a quiet denial. The contrast became stark when the Court later GVR‑d Smith v. Scott, relying on an emergency‑docket precedent and prompting dissent from Sotomayor, Kagan, and Jackson.

The divergent outcomes suggest the Court is calibrating its approach to gender‑transition disputes. While it is willing to apply emergency rulings when the legal question is sharply defined, it appears hesitant to open a full merits review that could set a broader precedent. Practitioners should monitor lower‑court decisions that echo Mirabelli’s reasoning, as they may become the de facto battleground for parental‑rights and transgender‑student cases until the Supreme Court decides whether to address the issue on a regular docket.