IN-DEPTH: Attorneys General, Legal Groups Supporting Parents Who Sued School Over Daughter’s Gender Transition

IN-DEPTH: Attorneys General, Legal Groups Supporting Parents Who Sued School Over Daughter’s Gender Transition
Florida mother January Littlejohn provides testimony before the Florida Boards of Medicine and Osteopathic Joint Rules/Legislative Committee Rule Workshop in Orlando, Fla., on Oct. 28, 2022. (Courtesy of January Littlejohn)
Matt McGregor

A coalition of 22 state attorneys general has joined in one of multiple amicus briefs filed in support of two Florida parents who sued a Florida school district for holding secret meetings with their daughter on gender transitioning.

The attorneys general are asking the 11th Circuit Court of Appeals in Florida to reverse the Northern District Court of Florida’s dismissal of the parents' claim in December 2022.

The judge who dismissed the case is Judge Mark Walker, appointed by former President Barack Obama.

“When a student considers transitioning gender, parents have a fundamental, constitutional right to be involved in that decision-making process,” the attorneys general wrote in the brief (pdf), filed on May 30. “Yet school districts across the country, strong-armed by ideologically driven advocacy groups, have shut parents out of the process and trampled on their fundamental rights.”

Among the state attorneys general who signed on are Tennessee Attorney General Jonathan Skrmetti, Mississippi Attorney General Lynn Fitch, and Florida Attorney General Ashley Moody.

According to the brief, the two appellants—parents January and Jeffrey Littlejohn—were excluded from a September 2020 meeting held by school officials with their child at Deerlake Middle School, which falls within the Leon County School District in Tallahassee, Florida.

The daughter—identified as A.G. in the brief—was 13 at the time and was experiencing gender confusion. She asked her parents for permission to use another name, identified as J. in the brief, and to be referred to with "they/them" pronouns.

The Littlejohns said no and alerted the school, telling them that they didn’t consent to the name or pronoun change, and asked for a counselor for A.G.

After that email, A.G. contacted the school counselor, Rachel Thomas, and requested to use the new name and pronouns.

In response, the brief states that Thomas set up a meeting and arranged a gender transition support plan that allowed A.G. to choose a preferred name, pronouns, restroom, and room-sharing arrangements for field trips.

District Shuts Out Parents

According to the brief, Thomas and school staff relied on a 2018 “Lesbian, Gay, Bisexual, Transgender, Gender Nonconforming, and Questioning Support Guide” policy created by Kathleen Rodgers, an assistant superintendent at the time, and approved by Superintendent Rocky Hanna.

The policy doesn’t require the parents to be notified or included in the meetings on a child’s gender identity.

The Littlejohns found out about the September meeting and contacted Thomas and Assistant Principal Robin Oliveri.

They were told that the meeting was confidential and protected by a nondiscrimination law that allowed for parental notice only with the student’s permission, the brief says.

“Oliveri explained that student consent was necessary to protect the student’s safety, a less-than-subtle suggestion that A.G. wouldn’t be safe if Appellants were notified about the support plan,” the brief states.

The Littlejohns later requested a meeting to get more information on the policy. During that meeting, the Littlejohns denied Rodgers’ request for a private meeting with A.G., though the appellants later discovered that Rodgers disobeyed their refusal.

In a subsequent meeting with school officials, staff failed to point to a law that allowed them to meet with the Littlejohns’ child without their permission.

“Appellants claimed that shutting them out of A.G.’s decision-making process for these crucial decisions, including the use of a new name and pronouns, caused A.G. emotional distress and exacerbated A.G.’s psychological and educational difficulties, increased the costs associated with providing educational alternatives to A.G., and damaged their family dynamic,” the brief states.

January Littlejohn speaks at a Florida Family Policy Council event in Orlando, Fla., on Nov. 11 2021. (Courtesy of Patti Sullivan)
January Littlejohn speaks at a Florida Family Policy Council event in Orlando, Fla., on Nov. 11 2021. (Courtesy of Patti Sullivan)

Advocate for Parental Rights

Since the incident, January Littlejohn has become a vocal advocate for parental rights, speaking at numerous events.
Littlejohn, also a mental health professional who specializes in attention-deficit/hyperactivity disorder, told The Epoch Times in a February 2023 interview that she understood that gender dysphoria was a rare mental health diagnosis that doesn't just appear in whole groups of children.

Instead, children are being socially transitioned, she said.

"When they socially transition these children, they are putting them on a pathway," she said. "Social transition is the first step toward medical transition. When parents discover what 'gender-affirming care' is—that we are giving children experimental puberty blockers and cross-sex hormones, which will eventually sterilize them—parents are horrified that schools take them along this pathway."

Parental Rights Under the Constitution

In addition to state attorneys general, organizations such as Alliance Defending Freedom (ADF)—a constitutional rights group advocating for religious freedom—also filed amicus briefs (pdf) in support of the Littlejohns.

Vincent Wagner, senior counsel with ADF, told The Epoch Times that the district court erred in its decision to not protect parental rights.

“The issue is here just how much protection parental rights claims get under the Constitution,” Wagner said. “The district court there did not give them much protection at all, and that’s the key argument on appeal is that the 11th Circuit needs to apply a higher standard of review to parental rights claims.”

According to ADF’s amicus brief, the district court failed to acknowledge “how deeply rooted parental rights are in our Nation’s history and tradition” by downplaying “the protection these rights receive under the Fourteenth Amendment.”

The brief states the district court’s second error was failing to apply strict scrutiny to the fundamental rights of the parents.

“Next, because the district court treated parental rights as disfavored instead of fundamental, it failed to ask whether the Defendants’ actions were narrowly tailored to serve any compelling state interest, as strict scrutiny requires,” the brief states.

Instead, the district court inappropriately used the “shocks the conscience” test, which the brief argues doesn’t apply because it was devised to hold executive officers of the state, such as the police, accountable for "'conduct that shocks the conscience,’ no matter whether it implicates a fundamental right," the brief states.

Using precedent, the brief distinguishes between the tests, stating that one—strict scrutiny—protects a person’s fundamental liberty, while the other protects against “the exercise of governmental power that shocks the conscience.”

However, the brief states, the district court “did not even acknowledge the existence” of strict scrutiny.

“It ruled that the Littlejohns’ claims failed because Defendants’ choice to treat their daughter as a different ‘gender identity’ did ‘not shock the conscience as defined by binding case law,’” the brief states.

‘We Are Seeing This Trend Nationwide’

Wagner said the ADF began focusing on parental rights a year and a half ago when cases like the Littlejohns’ became more common.

“More and more, we’re seeing schools cutting parents out of decisions about how to direct their child’s mental health care and education,” Wagner said.

Schools have instituted policies sometimes called "gender support plans" or "gender transition action plans," which are often implemented without parental involvement, Wagner explained.

“So, you have schools changing children’s names and pronouns at school without asking parents whether they think this is a good idea,” Wagner said. “We are seeing this trend nationwide.”

Parental rights are central to religious liberties in that parents have a constitutional right to raise their children in the faith of their choosing without the intervention of the government, Wagner said.

“Schools shouldn’t be keeping secrets from parents,” Wagner said. “They should be working together with parents on these sorts of issues. That should be common ground for all of us.”

Schools and Parental Rights

The Littlejohns' attorney, Vernadette Broyles, with the Child & Parental Rights Campaign, told The Epoch Times that the initial lawsuit filed in 2021 (pdf) argues that the cause of action was a violation of the parents' fundamental rights protected by the due process clause in the 14th Amendment to the U.S. Constitution.

However, Broyles said, it can be difficult to sue any state official, including public school districts, because they are granted sovereign immunity protection, which was one of Walker’s rulings to dismiss the case.

Historically, state officials are entitled to sovereign immunity based on common economy principles which set a standard to protect public funds that would be drained by an ongoing lawsuit.

“When you’re suing a public entity, you’re going to be impacting public funds, so in order to protect those funds that theoretically belong to everyone, private lawsuits are disfavored,” Broyles said. “This might have been fine 100 years ago when the government stayed in a very narrow lane. But now that the government is involved in everything, it’s an increasingly problematic, and in my opinion, anachronistic doctrine.”

Then there’s what Broyles said was the “improperly applied 'shock of conscience' test,” to which Wagner also referred.

“It’s a test that’s properly applied to executive actions that are high-pressure decisions that involve safety and the public welfare, but not for deliberative policy-making,” Broyles said.

The test doesn’t apply to the protection of constitutionally protected fundamental rights, however, according to Broyles.

“This isn’t even a scenario that would fall under 'shock the conscience' in this situation,” Broyles said. “This is a situation where school districts have engaged in the deliberative process of creating a whole LGBTQ manual with a gender support plan that involved deliberation and the creation of policy. That’s the situation, not a split-second, high-pressure executive action.”

After filing the appeal in the 11th Circuit, Broyles said 37 individuals and organizations filed amicus briefs in support.

“They were troubled by this incursion of school officials into the domain of fundamental parental rights to protect the mental health and well-being of the children who should really have no say-so in such matters,” Broyles said.

The Epoch Times contacted the Leon County School District for comment.