Parents lose chance to challenge Florida school's gender-identity policy at Supreme Court

(CN) — The U.S. Supreme Court declined on Monday to decide if a Florida school district violated the civil rights of a transgender student’s parents by developing a gender transition plan for the child without their knowledge.

The high court deniedthe petition for certiorari in Littlejohn v. School Board of Leon County without comment. The child’s parents, January and Jeffrey Littlejohn, filed the appeal, arguing the Leon County School Board in Tallahassee violated their rights by hiding their child’s transition plan from them.

An 11th Circuit panel ruled 2-1 against the parents last March. U.S. Circuit Judge Robin S. Rosenbaum, a Barack Obama appointee, wrote in the majority’s opinion that the district’s actions did not “shock the conscience.”

Rosenbaum said the child was not physically harmed or forced to participate in the transition plan. Most importantly, the district did not act with intent to injure the child, the judge wrote.

“To the contrary, they sought to help the child,” Rosenbaum wrote. “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’ child was assigned female at birth but asked to go by they/them pronouns and a new name, J., during middle school. The Littlejohns allowed the child to use the “nickname” at school but they told the child’s teacher they did not support the use of new pronouns.

After the Littlejohns’ child told a counselor they wished to socially transition at school, the counselor and other staff developed a student support plan with the child. The Littlejohns were not told about the plan or invited to a meeting to discuss it.

The Littlejohns contacted the school and district administrators after they learned about the plan. School staff told the parents they were not required to provide parental notification since it might endanger the child.

The Littlejohns sued the Leon County School Board and its administrators in 2021 for violating their parental-due-process and familial-privacy rights. U.S. District Judge Mark E. Walker, an Obama appointee, dismissed the suit the following year for failing to “shock the conscience,” but the case became a cause célèbre for Republicans opposed to gender-affirming school policies.

Florida Governor Ron DeSantis said he wanted to protect parents like the Littlejohns when he signed into law a 2022 bill stifling public school discussion of sexual orientation and gender identity.

January Littlejohn was a guest last March at Donald Trump’s address to the joint session of Congress, where the president told lawmakers his administration was committed to protecting children from “toxic ideologies” in schools.

The 11th Circuit panel rejected the Littlejohns’ appeal, but the judges disagreed on the merits of the substantive-due-process analysis used to decide the case.

U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, wrote in a concurring opinion that while the school administrator’s actions were “shameful,” they were not unconstitutional. But Newsom argued substantive due process was an “incoherent” test that allowed judges to “foist their policy preferences on society.”

“Substantive due process isn’t worth the candle,” Newsom wrote. “It’s doing more harm than good and we — by which I suppose I really mean my bosses at the Supreme Court — should ditch it,” he wrote.

Rosenbaum countered in a separate opinion that judicial activism is not a problem if the analysis is performed properly and faithfully.

Senior U.S. Circuit Judge Gerald Tjoflat, a Gerald Ford appointee, argued in dissent that the shocks-the-conscience standard was legal dicta that had morphed into binding authority without scrutiny, undermining Congress’s intent in enacting Section 1983.

“Today’s decision ignores bedrock separation-of-powers principles, waters down fundamental rights, and flies in the face of our prior panel precedent rule,” Tjoflat wrote. “It is as wrong as it is ominous for the future of fundamental rights in the 11th Circuit.”

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