Florida Attorney General James Uthmeier and Republican leaders in 19 other states are urging a federal appeals court to reconsider a decision that backed the Leon County school system in a dispute about a student wanting to express a gender identity and use pronouns the child's parents didn't support.
Lawyers in Uthmeier’s office and Montana Attorney General Austin Knudsen’s office last week filed a friend-of-the court brief calling for the full 11th U.S. Circuit Court of Appeals to hear arguments in the case.
A three-judge panel of the appeals court in March ruled against the parents, January and Jeffrey Littlejohn, in the lawsuit against the Leon County School Board, Superintendent Rocky Hanna and other school officials.
The state officials’ brief described the panel ruling as “disastrous for parents everywhere.”
Before the 2020-2021 school year, the Littlejohns’ child, then a 13-year-old student at Deerlake Middle School, asked to go by a male name, “J,” and use they and them pronouns, according to the panel’s main opinion. The child was identified as a girl at birth, and the Littlejohns did not allow the name and pronoun changes, though they said the child could use J as a “nickname” at school.
The child told a school counselor about wanting to use the name J and the they and them pronouns, the ruling said. Under a school system policy guide at the time, the parents were not informed of the social transition at school. That ultimately led to the lawsuit.
The ruling said the case involved a challenge to government executive actions and, as a result, the legal test under court precedents was whether school officials’ actions “shocked the conscience.” The panel, in a 2-1 ruling, concluded the actions did not rise to that level.
The brief filed last week by the state officials said the panel erred in applying the shock-the-conscience standard.
“Put simply, parents have a fundamental right to make decisions concerning the care, custody, and control of their children, including controversial decisions like whether to allow their children to socially transition,” the brief said. “Purposefully withholding from a parent critical information about supposed medical treatment that a school is providing a student not only violates that right, but does so to a disturbing and constitutionally intolerable degree.”
The brief also said that under a “proper shocks-the-conscience analysis, the school’s actions reached far beyond the pale.”
The panel’s main opinion, which upheld a decision by Chief U.S. District Judge Mark Walker to dismiss the case, said a gender identity-related “Student Support Plan” was developed with the child in compliance with school board guidelines at the time.
“The child was not physically harmed, much less permanently so,” Judge Robin Rosenbaum wrote in the main opinion. “Defendants did not remove the Littlejohns’ child from their custody. And defendants did not force the child to attend a Student Support Plan meeting, to not invite the Littlejohns to that meeting, or to socially transition at school. In fact, defendants did not force the Littlejohns’ child to do anything at all. And perhaps most importantly, defendants did not act with intent to injure. To the contrary, they sought to help the child."
"Under these circumstances, even if the Littlejohns felt that defendants’ efforts to help their child were misguided or wrong, the mere fact that the school officials acted contrary to the Littlejohns’ wishes does not mean that their conduct ‘shocks the conscience’ in a constitutional sense.”
The Littlejohns last month filed a petition asking the full Atlanta-based appeals court to hold what is known as an “en banc” hearing in the case. Groups from across the country have filed a series of friend-of-the-court briefs supporting the request. The Leon County school system had not filed a response as of Wednesday morning.
In addition to Florida and Montana, Republican attorney generals or legislative leaders from Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Nebraska, Oklahoma, Texas, South Carolina, South Dakota, Virginia and West Virginia signed on to the state officials’ brief.
