Arguing that “parental-exclusion policies present one of the most important constitutional controversies in the nation,” a couple has asked the U.S. Supreme Court to take up a battle with the Leon County school system about a child who wanted to express a gender identity and use pronouns the parents didn’t support.
Attorneys for January and Jeffrey Littlejohn filed a petition last week urging the Supreme Court to hear the dispute, after the 11th U.S. Circuit Court of Appeals ruled against them.
The petition said appellate courts across the country have taken different stances in cases with similar legal issues and that the Supreme Court should step in to resolve the questions.
The lawsuit stems from the 2020-21 school year, when the Littlejohns’ child, a 13-year-old at Leon County’s Deerlake Middle School, asked to go by a male name and use they and them pronouns, according to the petition and other court documents. The child was identified as a girl at birth, and the Littlejohns did not allow the name and pronoun changes.
The child, identified in the Supreme Court petition by the initials A.G., told a school counselor about wanting to use the different name and use they/them pronouns, the documents said. Under a school system policy guide at the time, the parents were not informed of the social transition at school. That led to the lawsuit and allegations that the parents’ rights had been violated.
“They labeled A.G. ‘nonbinary,’ required all teachers and staff to refer to her using they/them pronouns, updated internal records to reflect her ‘new’ name, asked her if she was ‘comfortable’ sharing bathrooms and bedrooms with males, and banned anyone from telling her parents,” the Supreme Court petition said. “They did all this without even asking A.G. if she wanted her parents to be involved. When the Littlejohns found out and asked the school to stop, the school refused.”
U.S. District Judge Mark Walker dismissed the lawsuit, and a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld his decision in March. The full Atlanta-based appeals court later declined to take up the case.
The appeals court panel, in a 2-1 ruling, said the case involved a challenge to government executive actions and, as a result, the test under legal precedents was whether school officials’ actions “shocked the conscience.” It concluded the actions did not rise to that level and also 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 panel’s 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 in last week’s petition, the Littlejohns’ attorneys argued the Supreme Court should revisit the shock-the-conscience legal test. They wrote that the panel’s majority “held that conscience-shocking behavior is a necessary element of fundamental-rights claims that challenge ‘executive’ misconduct. In other words, the majority dismissed the Littlejohns’ claims because the school’s actions were unconstitutional but not shockingly unconstitutional.”
The petition also cited differences among appellate courts across the country about the shock-the-conscience test.
“This case is an ideal vehicle for the court to resolve the disarray. The question presented — whether the shocks-the-conscience test applies when executive actors violate unenumerated fundamental rights — is purely legal and was the sole ground for decision. And here, that question arises as part of another ‘question of great and growing national importance;’ whether ‘a public school district violates parents’ ‘fundamental constitutional right to make decisions concerning the rearing of’ their children’ when it secretly helps students ‘transition to a new gender,’” the petition said, partially quoting a dissent by Justice Samuel Alito in another case.
The appeals-court panel’s opinion said the Leon County system in 2022 updated its policy guide about handling LGBTQ issues. But the case continued as the Littlejohns sought damages.
