A federal judge in San Diego has ordered more than $4.5 million in attorney's fees be paid to the Thomas More Society in compensation for fighting California's gender secrecy policies that hide from parents how their children express gender identity in public school.
U.S. District Judge Roger T. Benitez of California's Southern District, in the March 30 order, said the state of California should pay the amount.
"Plaintiffs achieved all of their main litigation objectives," he said, "and are therefore the prevailing party entitled to seek attorney fees from the government defendants."
Benitez said California maintained it was the "prevailing party" (winner entitled to compensation for attorney fees), until the U.S. Supreme Court rendered an opinion in the case March 2 that stated parents "have primary authority with respect to 'the upbringing and education of children.'"
In Mirabelli v. Bonta, the Thomas More Society, a Catholic-run public interest law firm, is representing a class of public school parents and a class of public school teachers who oppose California's policies. The state claims the policies were meant to protect the students' privacy and prevent potential abuse at home.
Various California laws allowed for public school students to essentially have gender transitions and hide that they were presenting as the opposite sex at school all without their parents' knowledge and without needing their parents' consent. Under the policies, teachers were not to discuss the students' gender dysphoria nor were they to address or refer to the students by their chosen (opposite sex) names when interacting with their parents.
Benitez's order on attorney fees documents the timeline of the case, which was first filed in April 2023 after two Catholic teachers with the Escondido Union Schools District sought the help of the Chicago-based Thomas More Society. The case then proceeded with several filings that led to the court on Dec. 22 placing a permanent injunction on the state's secrecy policies.
The state immediately went to the U.S. Court of Appeals for the 9th Circuit, which stayed the injunction for the duration of the appeal. The Thomas More Society then submitted an emergency filing asking the Supreme Court to reinstate the injunction, which it did, temporarily, in its 6-3 decision.
"Many of the hours spent by Plaintiffs' counsel were required to respond to defendants' litigation intransigence," noted Benitez in the order on attorney's fees.
"A $4.5 million fee award sends an unmistakable message to state governments and school districts across the country: if you trample the constitutional rights of parents, you will pay for it -- literally," said Peter Breen, Thomas More Society's executive vice president and head of litigation. "California threw everything it had at this case. It lost at summary judgment, lost at the Supreme Court, and now Californians will foot the bill for their government officials' refusal to respect the fundamental rights of families."
The 9th Circuit on March 17 also denied the state of California's request that it change language in the injunction that has barred California from using its secrecy policies.
The 9th Circuit said in its ruling California raised "important concerns, particularly whether the injunction would compel disclosure to 'parents who would engage in abuse.'" But it stated that it agreed with the plaintiffs that "the district court retains jurisdiction to modify its injunction during the pendency of the appeal" and rejected the request.
"California has now lost at the district court, lost at the Supreme Court, and been turned away by the Ninth Circuit," Breen said in a March 17 statement .
In approving the proposed compensation, Benitez said Thomas More Society has shown that its attorneys -- who logged more than 3,800 billable hours through Feb. 2 -- have "significant litigation experience in protecting constitutional rights and has provided evidence of prior rate approvals." He said the fees fall within an acceptable range for "attorneys of comparable skill and experience in civil rights litigation."
Benitez said the state of California argued "the hours billed were excessive; they could not recover from media and public relations work, overstaffing, duplicative depositions," among a list of what it deemed unwarranted.
"The case required an enormous amount of attorney time to articulate claims for relief, defend against numerous defense motions to dismiss or for judgment on the pleadings filed by several state office-holding defendants. Plaintiffs appropriately amended their Complaint several times as the state defendants maneuvered and shifted their defenses," he said.
Benitez said, as recently as the day he wrote the attorney fees order, the state of California "vociferously argue(d) that the injunction is flawed and needs to be modified."
The amount was also determined by a "lodestar multiplier," which is calculated based on ""the product of reasonable hours times a reasonable rate."" In this case, Benitez took the lodestar rate and multiplied it by a 25% upward adjustment for legal expertise and contingent fees.
Thomas More Society said in a press release about the fee order, "The Court found every factor justified the multiplier: the constitutional significance of the case, the results achieved, the undesirability of the case, and the likelihood that no other attorney would have accepted it."
