Does it "shock the conscience" for a Florida school district to withhold a 13-year-old's gender transition from her parents and treat her as a boy even after her parents object?

A divided panel of the 11th U.S. Circuit Court of Appeals set off alarm bells in March by ruling the state's Leon County School Board's behavior was not shocking under a 1998 Supreme Court precedent that limited accountability for official misconduct that causes serious harm – in that case, police and high-speech chases that kill fleeing suspects.

The 169-page behemoth – 143 pages devoted to concurrences and a dissent – prevented the girls' parents from seeking damages for violation of their substantive due-process rights, even as the judicial majority fought over the legitimacy of the legal doctrine itself and "assume[d] without deciding" the parents had invoked "fundamental" rights.

Jeffrey and January Littlejohn, whose 2021 lawsuit helped kickstart a nationwide parental rights movement, filed a petition for rehearing by the full Atlanta-based appeals court last week, supported by briefs from a prominent transgender clinical psychologist among others.

Youth social transition "is a major and potentially life-altering decision" and "not the best approach for all children experiencing gender incongruence," former U.S. Professional Association for Transgender Health President Erica Anderson, who primarily treats gender-confused kids, said in a joint brief with two public interest law firms.

Such children "should receive a careful professional assessment … parents must be involved and must ultimately decide what is best for their child," Anderson, the Liberty Justice Center (LJC) and Wisconsin Institute for Law and Liberty (WILL) wrote.

They were backed by 19 Republican attorneys general and the Arizona Legislature and parental rights groups including Defending Education, Alliance Defending Freedom (ADF) and the Manhattan Institute and its pediatric gender medicine researcher Leor Sapir, who has scrutinized the science of so-called gender affirming care.

"We summarize medical research showing that social transition is not a neutral act but an active intervention," the Manhattan Institute summarized. "Its use on children and adolescents in schools falls squarely within parents’ fundamental right to guide their children’s healthcare."

President Trump put a spotlight on the case a week before the 2-1 ruling in his address to a joint session of Congress, mentioning the Littlejohns by name and calling the district's behavior "child abuse." January was a guest of first lady Melania Trump at the address.

'Incoherent ... made up' and 'doing more harm than good'

The federal appeals courts have been all over the map just this year on secret gender transition litigation, with the San Francisco-based 9th Circuit reinstating a mother's substantive due process lawsuit against a California school district last month because a district judge wrongly dismissed it using the legal standard for qualified immunity.

Yet in February, the 1st Circuit – which has no Republican presidential nominees – upheld Massachusetts's Ludlow Public Schools' secret transitioning of a girl. It said parents can't use the due process clause to create a "preferred educational experience" for their children that overrides "the expertise of school officials," even if they lie to parents about doing it.

The Boston-based appeals court said courts haven't recognized the duplicity of hidden gender transitions as a "violation of the guarantees of substantive due process" – itself a controversial judicial principle for protecting unenumerated rights against government infringement, and a repeated target of Justice Clarence Thomas.

Judges Robin Rosenbaum and Kevin Newsom on the 11th Circuit, nominated by presidents Obama and Trump, respectively, tossed the Littlejohn suit while sniping at each other in dueling concurrences on the validity of substantive due process, with Newsom going so far as to call it "incoherent … made up" by judges and "doing more harm than good."

The dissent by President Ford nominee Gerald Tjoflat, at age 95 the oldest federal judge in active service, warned the 11th Circuit has tacitly ended enforcement of the "fundamental liberty interests" of parents. "The question is whether the Littlejohns alleged a violation of a fundamental right, not whether the conduct also 'shocked the conscience,'" he said.

Preempting parents amid 'ongoing debate in the mental health community'

The Littlejohns' petition for rehearing invoked other parts of Newsom's concurrence – which mocked the "jurisprudential dumpster fire" around substantive due process and the conscience-shocking requirement, which only applies to executive actions and is thus "totally bizarre" – as cries for full-court intervention.

The majority couldn't help but allude to "contrary" statements from the Supreme Court and 11th Circuit itself, but ruled out conscience-shocking by minimizing the harm to the parents – being cut out of decisions about "psychosocial care" –j and emphasizing their daughter was "not physically harmed," taken from them or compelled “to do anything," ADF's brief says.

Echoing the 9th Circuit's reinstatement of the California lawsuit, the Republican AGs' brief says the panel went wrong by "largely relying on circuit precedent about qualified immunity" and botching SCOTUS on conscience-shocking.

The panel ignored whether the district's actions were "deliberate and measured" and insisted only "malicious conduct" or "obviously excessive force" could shock the conscience, a standard the judges admitted is difficult to reach "even where a student dies," their brief says.

Transgender psychologist Anderson, who has transitioned "many" young clients, also filed in the 9th Circuit case alongside LJC and WILL, and was cited in a January district court ruling that greenlit a suit against California officials for secret gender transition guidance to schools.

Their joint brief, which identifies male Anderson using female pronouns, called parental involvement "critical" to "properly assess the underlying sources of the child’s feelings," evaluate risks and benefits, "address any coexisting issues," support the child and ultimately decide whether transition will help the child.

Usurping parents in such a major decision about their child, in the middle of "an ongoing debate in the mental health community about how quickly and under what conditions" gender-confused kids should socially transition, clearly shocks the conscience, even though that condition is not required for the Littlejohns to defend their fundamental rights, the joint brief says.

Natural desistance from gender confusion was 80-90% before immediate affirmation of gender identity became a trend, as confirmed by the seventh edition of the World Professional Association for Transgender Health's Standards of Care in 2012, the brief says. It cites the recent Cass report in the U.K. on social transition as a gateway to medical transition.

Medical interventions such as puberty blockers, cross-sex hormones and surgeries in turn "carry known and anticipated risks, including lifelong sterility, sexual dysfunction, mood disorders, and increased risk for cancer and heart disease," the Manhattan Institute brief says.