A court case in Leon County (Tallahassee), Fla., has attracted the attention of attorneys general in 19 other states after a three-judge appeals panel ruled that parents had no legal right to be informed of their child's desire to change genders.
January and Jeffrey Littlejohn are the parents of a 13-year-old girl who expressed a desire to school officials to change her gender and be called by other pronouns. The school board in Leon County established guidelines, "Lesbian, Gay, Bisexual, Transgender, Gender Nonconforming and Questioning Support Guide," that included the guidance not to tell parents of their child's desire to change gender and further, to lie to the parents by using the child's pronouns preferred by the parents when discussing their daughter.
Does this "shock your conscience?" According to Florida law, acting contrary to the wishes of the girl's parents does not meet the constitutional standard that requires an act by executive authority to "shock the conscience." The circuit court dismissed the lawsuit, and the appeals court upheld that decision by a 2-1 vote. Constitutional law expert and Manhattan Institute director of constitutional studies, Ilya Shapiro, explains their reasoning.
The appellate panel held that even if the Littlejohns alleged that defendants intentionally violated their constitutional rights, they had to allege further that the defendants’ conduct “shocked the conscience.” That “shock-the-conscience” requirement, per the majority, doesn’t apply to challenges of legislative actions, but it does apply to all claims that executive actions—like those of school officials—violate fundamental rights.
The decision was admittedly in tension with at least three other circuit precedents, each of which says that plaintiffs may win by showing either that the executive officials’ conduct violated their constitutional rights or that it shocked the conscience, but not necessarily both. Though he joined the majority because he felt bound to do so, Judge Kevin Newsom called the outcome “totally bizarre.”
January Littlejohn joined Donald Trump on March 4 during the president's joint address to Congress.
The "shock the conscience" legal standard that failed in this case is being challenged by the Littlejohns and several states and conservative advocacy groups.
“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 challenging 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 pointed out that under a “proper shocks-the-conscience analysis, the school’s actions reached far beyond the pale.”
Exclusively for our VIPs: The Tide Is Finally Turning on Protecting Children From 'Gender-Affirming Care'
I feel sorry for the kids of the judge who wrote the majority opinion. He says not to worry, school officials didn't hurt the child or the parents.
“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."
See? They were only trying to "help"!
"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.”
That judge sure has a high bar to shock his conscience.
Parents and children must be given judicial protection from judges whose radical interpretation of the law tramples on parental rights.
Help PJ Media continue to tell the truth about the Trump administration's accomplishments as we continue to usher in the Golden Era of America. Join PJ Media VIP and use promo code FIGHT to get 60% off your membership.
Join the conversation as a VIP Member