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In a tort action stemming from discussions about gender inclusivity, Horvitz & Levy convinced the Court of Appeal to reverse a trial court order denying its client’s anti-SLAPP motion and to order that almost all claims be dismissed.

Two fifth grade girls attended a four-night science camp organized through their public school district and run by defendant Pali Institute. On the first day of camp, the girls’ counselor introduced themselves to the campers as nonbinary, explained that the campers would have to use “they/them” pronouns to refer to them, and invited the campers to share their pronouns with the group.  Pursuant to the camp’s general policy prohibiting campers from calling home during camp, the girls were not permitted to call home to inform their parents of what happened.  The girls sued the school district and the camp claiming negligent or intentional infliction of emotional distress, alleging that this instruction on LGBTQ-related issues was tortious because the girls’ parents had not been warned before and the girls were prevented from calling home after.  The camp filed an anti-SLAPP motion, arguing that the instruction on pronouns was protected expressive activity and the girls could not show a probability of prevailing on their claims.  The trial court denied the motion, ruling that the girls’ claims did not arise from the counselors’ pronoun lesson but rather from the camp’s failure to warn parents and permit the girls to call home about the lesson.

Pali retained Horvitz & Levy to appeal.  In a unanimous, published opinion, the Court of Appeal held that the pronoun lesson in an educational setting constituted free speech that furthered an issue of public importance, and was therefore protected by the anti-SLAPP statute.  The Court of Appeal reversed the trial court, agreeing with Horvitz & Levy that essentially all of the girls’ claims arose from the pronoun lesson itself, not merely the lack of parental notice or general rule against calling home.  The court then held that the plaintiffs showed no probability of prevailing on their claims arising from the pronoun lesson because those claims were contrary to California public policy.  The court explained that the Legislature has made clear its position that gender identity is a characteristic to be protected and safeguarded, and that gender identity discrimination should not be tolerated in schools.  Thus, “Construing conduct which consists of engaging in gender identity discussions aimed at establishing a more inclusive school environment as outrageous or a breach of a duty of care would run directly counter to that established state policy.”