                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2178


M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,

                Plaintiff – Appellee,

          v.

DR. JAMES AMRHEIN,

                Defendant – Appellant,

          and

DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH; KIM AYDLETTE;
MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi Davis; MARY
SEARCY; DOE 1, Unknown South Carolina Department of Social
Services Employee; DOE 2, Unknown South Carolina Department
of Social Services Employee; DOE 3, Unknown South Carolina
Department of Social Services Employee,

                Defendants.

------------------------------

AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,

                Amici Supporting Appellee.
                              No. 13-2182


M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,

                Plaintiff – Appellee,

          v.

KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi
Davis; MARY SEARCY,

                Defendants – Appellants,

          and

DR. JAMES AMRHEIN; DR. IAN AARONSON; DR. YAW APPIAGYEI-
DANKAH; DOE 1, Unknown South Carolina Department of Social
Services Employee; DOE 2, Unknown South Carolina Department
of Social Services Employee; DOE 3, Unknown South Carolina
Department of Social Services Employee,

                Defendants.

------------------------------

AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,

                Amici Supporting Appellee.



                              No. 13-2183


M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,

                Plaintiff – Appellee,

          v.


                                   2
DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH,

                 Defendants – Appellants,

           and

DR. JAMES AMRHEIN; KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE
DAVIS, a/k/a Candi Davis; MARY SEARCY; DOE 1, Unknown South
Carolina Department of Social Services Employee; DOE 2,
Unknown South Carolina Department of Social Services
Employee; DOE 3, Unknown South Carolina Department of
Social Services Employee,

                 Defendants.

------------------------------

AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,

                 Amici Supporting Appellee.



Appeals from the United States District Court for the District
of South Carolina, at Charleston.    David C. Norton, District
Judge. (2:13-cv-01303-DCN)


Argued:   September 17, 2014                Decided:   January 26, 2015


Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Reversed and remanded with instructions by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Motz and Senior
Judge Davis joined.


ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina; James Ben Alexander, HAYNSWORTH SINKLER BOYD,
P.A., Greenville, South Carolina; Elloree Ann Ganes, HOOD LAW
FIRM, LLC, Charleston, South Carolina, for Appellants.   Kristi
Lee Graunke, SOUTHERN POVERTY LAW CENTER, Atlanta, Georgia, for

                                  3
Appellee.   ON BRIEF: Kenneth N. Shaw, HAYNSWORTH SINKLER BOYD,
P.A., Greenville, South Carolina, for Appellant Dr. James
Amrhein.     Robert H. Hood, Barbara Wynne Showers, Deborah
Harrison Sheffield, HOOD LAW FIRM, LLC, Charleston, South
Carolina, for Appellants Dr. Ian Aaronson and Dr. Yaw Appiagyei-
Dankah.   William H. Davidson, II, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellants Kim Aydlette, Meredith
Williams, Candice Davis, and Mary Searcy.     Kenneth M. Suggs,
JANET, JENNER AND SUGGS, LLC, Columbia, South Carolina; Alesdair
H. Ittelson, David Dinielli, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama; Anne Tamar-Mattis, ADVOCATES FOR INFORMED
CHOICE, Cotati, California; John Lovi, William Ellerbe, STEPTOE
AND JOHNSON LLP, New York, New York, for Appellee.    Suzanne B.
Goldberg, Sexuality & Gender Law Clinic, COLUMBIA LAW SCHOOL,
New York, New York, for Amicus AIS-DSD Support Group. Priscilla
J. Smith, LAW OFFICE OF PRISCILLA J. SMITH, Brooklyn, New York,
for Amicus The Program for the Study of Reproductive Justice-
Information Society Project at The Yale Law School and
Constitutional Scholars.


Unpublished opinions are not binding precedent in this circuit.




                                4
DIAZ, Circuit Judge:

       In April 2006, a doctor performed sex assignment surgery on

sixteen-month-old       M.C.,      who    was      in   the   legal   custody    of    the

South   Carolina      Department         of    Social      Services     and   had     been

diagnosed      at   birth   with    an    intersex        condition.      Four      months

after the surgery, Pamela and Mark Crawford took custody of M.C.

before adopting him in December 2006.                     The Crawfords filed this

42 U.S.C. § 1983 action on M.C.’s behalf, against the officials

and doctors who played a part in the decision to have M.C.

undergo the surgery.          The district court denied the officials’

and doctors’ motions to dismiss based on qualified immunity.

Because we find that no then-extant precedent gave fair warning

to those involved in the decision regarding M.C.’s surgery that

they    were    violating     his        clearly        established     constitutional

rights, we reverse.



                                              I.

       In our de novo review of a denial of a motion to dismiss

based   on     qualified    immunity,         we   take    “as   true   the   facts     as

alleged in the complaint, and view those facts in the light most

favorable to the nonmoving party.”                  Jenkins v. Medford, 119 F.3d

1156, 1159 (4th Cir. 1997) (en banc) (footnote omitted).                                We

draw the following facts from M.C.’s complaint.



                                              5
       M.C. was born with ovotesticular difference/disorder of sex

development (DSD).             Ovotesticular DSD is an intersex condition

where     the        individual    has       ovarian     and     testicular       tissue.

Hospital records first identified M.C. as male, but                              treating

physicians later sometimes referred to M.C. as female.                            Through

tests, examinations, and surgery, doctors determined that M.C.

had     “extremely       elevated”       testosterone      levels        and    that     his

genitalia consisted of a testicle, an ovotestis with ovarian and

testicular tissue, a phallus, scrotalized labia, a short vagina,

and no uterus.          J.A. 21-22.

        In February 2005, M.C. was placed in the custody of the

South    Carolina       Department      of    Social     Services    (“SCDSS”)         until

December    2006,       when    the    Crawfords       adopted    him.         Before   the

adoption, SCDSS had was authorized to make medical decisions for

M.C.

        After many examinations, tests, two surgeries, and numerous

consultations among SCDSS officials and doctors over the course

of a year, Drs. James Amrhein, Yaw Appiagyei-Dankah, and Ian

Aaronson    recommended         that     M.C.     have   sex     assignment      surgery.

According       to    M.C,   the   doctors        recommended     the    “irreversible,

invasive, and painful” surgery despite “no compelling biological

reason to raise M.C. as either male or female.”                           J.A. 12, 23.

The doctors also knew that they could “assign M.C. a gender of

rearing and postpone surgery” and that the surgery carried risks

                                              6
of “complete loss of sexual function, scarring, loss of male

fertility,         gender   misassignment,        and      lifetime      psychological

distress.”         J.A. 24-25.     In short, M.C. alleges that the surgery

was medically unnecessary.             J.A. 25.

       In     April    2006,    with   consent    from       SCDSS, 1    Dr.    Aaronson

performed      a     feminizing    genitoplasty       on   sixteen-month-old        M.C.

This       surgery    involved    removing     most     of   M.C.’s      phallus,    his

testicle, and the testicular tissue in his ovotestis.

       After adopting M.C., the Crawfords originally raised him as

a girl, consistent with the sex assignment surgery.                       But as M.C.

grew older, it became clear that he identified as male, and he

is now living as a boy.

       M.C., by and through the Crawfords, filed a § 1983 lawsuit

against the three doctors and seven SCDSS officials who played a

part in the decision to perform the sex assignment surgery.                           He

alleged       Fourteenth       Amendment   substantive        and     procedural     due

process violations.             The district court denied the defendants’

motions to dismiss on qualified immunity grounds.                              The court

concluded that M.C. had pleaded sufficient facts to support his

contention that the defendants “violated his clearly established

constitutional right to procreation.”                 J.A. 244.         The defendants

       1
       We do not consider the defendants’ assertion that M.C.’s
birth mother also consented to the sex assignment surgery
because that was not alleged in the complaint.



                                           7
appealed, and we have jurisdiction.                   See Winfield v. Bass, 106

F.3d 525, 528 (4th Cir. 1997) (en banc) (“To the extent that an

order of a district court rejecting a governmental official’s

qualified     immunity     defense       turns   on    a   question   of    law,   it

is . . . subject to immediate appeal.”).



                                          II.

                                          A.

     To      avoid   dismissal      of    a     complaint    after    a    qualified

immunity defense is raised, a plaintiff must allege sufficient

facts to “make out a violation of a constitutional right” and

the court must find that this right “was clearly established at

the time of” the alleged violation.                   Pearson v. Callahan, 555

U.S. 223, 232 (2009) (internal quotation marks omitted).                     Courts

are “permitted to exercise their sound discretion in deciding

which   of    the    two   prongs    of    the   qualified    immunity     analysis

should be addressed first in light of the circumstances in the

particular case at hand.”           Id. at 236.

     The right at issue must be defined “at a high level of

particularity.”        Bland v. Roberts, 730 F.3d 368, 391 (4th Cir.

2013) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 251

(4th Cir. 1999)).          “This is not to say that an official action

is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say

                                           8
that in the light of pre-existing law the unlawfulness must be

apparent.”         Anderson    v.    Creighton,     483   U.S.     635,   640    (1987)

(citation omitted).

       To be clearly established, “[t]he contours of the right

must   be    sufficiently      clear    that    a    reasonable     official         would

understand that what he is doing violates that right.”                       Id.      The

law    can    be     clearly        established      “even    in    novel       factual

circumstances” so long as officials had “fair notice” that their

conduct violated a constitutional right.                     Hope v. Pelzer, 536

U.S. 730, 739-41 (2002).

       The “salient question” before us is “whether the state of

the law in [2006] gave [the defendants] fair warning that their

alleged treatment of [M.C.] was unconstitutional.”                        Id. at 741.

Because we find that the alleged rights at issue in this case

were not clearly established at the time of M.C.’s 2006 sex

assignment surgery, we need not reach the question of whether

M.C. alleged sufficient facts to show that the surgery violated

his constitutional rights.             See, e.g., Pearson, 555 U.S. at 243-

45.

                                          B.

       We    first   consider        M.C.’s    contention,       accepted       by     the

district court, that the defendants had fair warning that the

sex    assignment     surgery       violated   his    constitutional        right       to

reproduction.        In support of this proposition, M.C. draws our

                                           9
attention    to    three       cases:       Planned     Parenthood       of    Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992); Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535 (1942); and Avery v. County of

Burke, 660 F.2d 111 (4th Cir. 1981).                        Although we acknowledge

the broad statements in these cases about reproductive rights,

we cannot say that a reasonable official would understand them

as   clearly    establishing           an    infant’s      constitutional           right    to

delay sex assignment surgery.

      In   Casey,        the    Supreme       Court     reaffirmed       the     three-part

essential      holding         of    Roe     v.    Wade,    410    U.S.       113     (1973),

recognizing       “the    right       of    the    woman    to    choose       to    have    an

abortion     before       viability         and    to    obtain    it     without       undue

interference from the State”; confirming “the State’s power to

restrict abortions after fetal viability, if the law contains

exceptions for pregnancies which endanger the woman’s life or

health”;    and    establishing            “the    principle      that    the       State   has

legitimate     interests            from    the    outset    of    the        pregnancy     in

protecting the health of the woman and the life of the fetus

that may become a child.”              Casey, 505 U.S. at 846.

      Skinner involved Oklahoma’s statutory scheme to sterilize

inmates classified as habitual criminals.                         316 U.S. at 536-37.

In finding the scheme unconstitutional, the Court focused its

analysis on how the law “la[id] an unequal hand on those who

ha[d] committed intrinsically the same quality of offense and

                                              10
sterilize[d] one and not the other.”                 Id. at 541.         The Court

gave the example that the sterilization law did not apply to

embezzlers but did apply to those who committed grand larceny.

Id. at 541-42.

     In Avery, we considered the case of a fifteen-year-old girl

who was misdiagnosed with sickle cell trait and then counseled

by state actors to be sterilized.               660 F.2d at 113.         Relying on

their    advice,        “Avery    and     her    mother      consented     to   the

sterilization,” but later tests showed that she did not have

sickle cell trait.         Id.    Avery claimed “that she was wrongfully

sterilized”       because        of     the     misdiagnosis      and      “because

sterilization is not medically recommended or proper, even when

there has been a correct diagnosis of [sickle cell] trait.”                     Id.

She sued the individuals who recommended sterilization and their

employers, the local county and its Board of Health and Board of

Social Services.

     Concluding that “[t]he county and the boards may be liable

under    § 1983    if    their    policies      or   customs    actually     caused

Avery’s injuries,” we found that summary judgment in favor of

the local government entities was improper because a genuine

issue existed as to whether the county health boards’ failure to

implement policies for counseling and sterilizing people with

sickle    cell     trait    amounted      to     a   tacit     authorization     or



                                          11
deliberate indifference to Avery’s right of procreation.                          Id. at

114-15. 2

      Relying on the principles gleaned from these cases, the

district     court      concluded     that     the   defendants        violated    M.C.’s

clearly      established        “right   to    procreation.”           J.A.    244.    We

think,      however,     that    this    frames      the    right   too    broadly     for

purposes of assessing the defendants’ entitlement to qualified

immunity.        See, e.g., Winfield, 106 F.3d at 531 (holding that

the   district         court     erred    in       defining      the     right    at   an

inappropriate      “degree       of   abstraction”         and   instead      considering

whether      a   much    more     factually        detailed      right     was    clearly

established).

      In our view, the alleged right at issue is that of an

infant to delay medically unnecessary sex assignment surgery.

By “medically unnecessary,” we mean that no imminent threat to

M.C.’s health or life required state officials to consent to the

surgery, or doctors to perform it.                   Viewed in that light, we do

not think that Casey, Skinner, or Avery put reasonable officials

on notice that they were violating M.C.’s constitutional rights.

As we have repeatedly emphasized, “[o]fficials are not liable

for bad guesses in gray areas; they are liable for transgressing

      2
        Notably, however, Avery made no mention of the merits of
the claim against the individual defendants.




                                              12
bright lines.”        Maciariello v. Sumner, 973 F.2d 295, 298 (4th

Cir. 1992).        We hold that the defendants did not transgress such

a bright line in this case.

                                            C.

       Although     not    reached    by    the     district    court,    M.C.       also

contends     that    the    defendants      had     fair    warning   that     the   sex

assignment surgery violated his constitutional rights to bodily

integrity and privacy.            For the right to bodily integrity, M.C.

points us to Winston v. Lee, 470 U.S. 753 (1985), and Rochin v.

California, 342 U.S. 165 (1952).                 For the right to privacy, M.C.

relies on Lawrence v. Texas, 539 U.S. 558 (2003).                     We find these

cases too dissimilar to give the defendants fair notice of the

alleged constitutional violation.

       Lee   and     Rochin      involved        medical    procedures    to      secure

evidence against individuals suspected of committing a crime.

In Lee, the Court disapproved of a compelled surgical procedure

to extract a bullet that could connect Lee to a robbery.                              470

U.S.    at   755.          The    Court     in     Rochin    found    shocking        and

unconstitutional          three    police        officers’     struggle      to      open

Rochin’s mouth to extract the capsules he had swallowed and,

when that method proved unsuccessful, forced stomach pumping to

retrieve the capsules.            342 U.S. at 166, 172.          Neither of these

cases, however, gave the defendants fair notice that they were



                                            13
violating M.C.’s right to bodily integrity by performing sex

assignment surgery that M.C. contends was medically unnecessary.

      As for Lawrence, that case struck down “a Texas statute

making it a crime for two persons of the same sex to engage in

certain intimate sexual conduct.”                       539 U.S. at 562.         We do not

think   that       a    case    barring      a    criminal     prosecution         based    on

intimate, private sexual conduct between consenting adults gave

the   defendants         fair     notice     that      they   could      not   perform     sex

assignment surgery on M.C. because it might impact his future

sexual autonomy.

                                                 D.

      M.C. also alleges that the defendants violated his clearly

established procedural due process rights by not seeking a “pre-

deprivation hearing” “in which a neutral fact finder could weigh

the   risks    and       purported         benefits      of   early     [sex   assignment]

surgery,      as       well     as    the     possibility          of    postponement      or

alternatives        to    surgery.”          Appellee’s       Br.   at    46-47.      In    so

alleging,      he       equates      the    sex       assignment    surgery     to   forced

sterilization.           To support his argument, M.C. relies on Buck v.

Bell, 274 U.S. 200 (1927); a concurring opinion in Skinner, 316

U.S. at 543; and numerous state statutes and cases requiring a

court hearing “before an individual incapable of consent can be

sterilized.”           Appellee’s Br. at 48.



                                                 14
        We find, however, that reasonable officials in 2006 did not

have    fair     warning         that    they     were     violating         M.C.’s      clearly

established rights by not seeking a hearing before performing,

or consenting to, the sex assignment surgery.                               M.C.’s citations

to state statutes and cases are unpersuasive because many post-

date    2006,    when      the     surgery       took    place,       and    all    come      from

outside South Carolina, where the surgery took place.

       Moreover,       Buck      and    Skinner       involved       intentional,        certain

sterilization          “of       mental        defectives”           committed      to     state

institutions         and   “habitual       criminal[s],”             respectively.         Buck,

274 U.S. at 205; Skinner, 316 U.S. at 536.                             In stark contrast,

the    complaint      in     this       case    alleges       that    the    sex    assignment

surgery was performed on an infant with “ambiguous genitals” and

that     such    surgery          “may     reduce        or    eliminate         reproductive

capacity.”       J.A. 11, 19 (emphasis added).                        And although M.C.’s

brief    describes         the    surgery       as    “fertility-destroying”              and   a

“surgical[] castrat[ion],” Appellee’s Br. at 45, the complaint

more     cautiously          describes          the     surgery        as    a     “potential”

sterilization,         with      “loss     of    male     fertility”        as     one   of    the

“risks.”    J.A. 24-25, 31-32.

       While it is true that “the very action in question” need

not have “previously been held unlawful” for an official to be

stripped        of     qualified          immunity,           the      unlawfulness           must

nonetheless “be apparent” “in the light of pre-existing law.”

                                                15
Anderson, 483 U.S. at 640.                   We conclude that the authority on

which M.C. relies did not make it apparent that the defendants

acted unlawfully by not seeking a hearing before the surgery.



                                             III.

       Our core inquiry is whether a reasonable official in 2006

would       have       fair   warning    from       then-existing     precedent   that

performing            sex   assignment   surgery       on   sixteen-month-old     M.C.

violated          a     clearly   established        constitutional     right.     In

concluding that these officials did not have fair warning, we do

not mean to diminish the severe harm that M.C. claims to have

suffered.         While M.C. may well have a remedy under state law, 3 we

hold       that       qualified   immunity    bars    his   federal    constitutional

claims because the defendants did not violate M.C.’s clearly

established rights.

        We therefore reverse the district court’s denial of the

defendants’ motions to dismiss and remand with instructions to

dismiss the complaint.

                                     REVERSED AND REMANDED WITH INSTRUCTIONS




       3
       We have been advised that M.C. filed separate suits in
state court asserting state law claims against the defendants.



                                              16
