In a case that has drawn national attention, a federal appeals court this week declined 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.
The 11th U.S. Circuit Court of Appeals on Thursday denied a request by the parents, January and Jeffrey Littlejohn, for the full appeals court to hear the dispute. A panel of the Atlanta-based court, in a 2-1 decision, ruled in favor of the school system in March.
Florida Attorney General James Uthmeier and Republican leaders in 19 other states filed a brief in April supporting the parents’ request for what is known as an “en banc” hearing. Also, numerous conservative and parents’ rights groups from across the country urged the appeals court to reconsider the case.
A majority of the active judges on the court could have voted to rehear the case. But Thursday’s order indicated that no judge requested that the court be “polled” on the request. It did not provide further explanation.
The panel’s March decision upheld a ruling by U.S. District Judge Mark Walker to dismiss the case, which was filed in 2021.
Before the 2020-2021 school year, the Littlejohns’ child, then a 13-year-old student at Leon County’s Deerlake Middle School, asked to go by a male name, “J,” and use they and them pronouns, according to the appeals-court 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 opinion 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 and allegations that the parents’ rights had been violated.
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The appeals court panel said the case involved a challenge to government executive actions and, as a result, the test under court precedents was whether school officials’ actions “shocked the conscience.”
The panel’s main opinion concluded the actions did not rise to that level. Also, it 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.”
But attorneys for the Littlejohns and the Republican state leaders took issue with the panel’s application of 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 state leaders’ 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.”
