If Governor Newsom signs California’s transgender youth “refuge” bill into law, it will be one of the most explicit and radical assaults on parental rights that our nation has ever seen. While debates about how best to care for children with gender dysphoria are ongoing, one thing is clear: encouraging troubled children to run away from home and dividing them from their parents is certain to inflict great harm.
by Melissa Moschella
Originally published by Public Discourse
The California legislature recently passed a bill that would let the state take custody of minors who travel to California for what the bill calls “gender-affirming” medical care. This means that if a child from another state runs away from home seeking access to medical gender transition—or is taken to California for this purpose by an adult—California will not return that child to his or her parents. The state will also provide the child with puberty-blocking hormones, cross-sex hormones, or even surgeries without the parents’ knowledge or consent. If Governor Newsom signs the bill into law, it will be one of the most explicit and radical assaults on parental rights that our nation has ever seen.
Anyone who acknowledges that parents are usually the best judges of what their kids need should vehemently reject this law and any other that usurps parents’ authority. In previous Public Discourse articles and elsewhere, I have argued at length that parents have fundamental natural rights to direct the education and upbringing of their children. These rights are based on the very nature of the parent–child relationship and of the natural parental obligations to which that relationship gives rise. The state has an obligation to respect those rights, by avoiding coercive intrusion into the family sphere except in cases of genuine abuse, neglect, or threat to the public order. It is clear that the proposed California law violates those rights, for—as I will argue below—loving and responsible parents can reasonably judge that medical gender transition is not in their child’s best interest, and the state lacks authority to override that judgment.
But the California law isn’t just morally egregious. It also directly violates well-established precedents in constitutional law recognizing respect for parental rights as essential to freedom and limited government. (The Alliance Defending Freedom, a conservative legal advocacy group, provides broader legal analysis of the proposed legislation, which can be found here.)
The Supreme Court, drawing on the common-law tradition, has explicitly recognized that parents have fundamental natural rights and obligations to control the care, custody, and education of their children. In Meyer v. Nebraska(1923), the Supreme Court ruled that a Nebraska law forbidding the teaching of foreign languages prior to ninth grade (and thus preventing parents from seeking such instruction for their children) violated this fundamental right of parents. In the court’s opinion, the justices observed that parental rights are among “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men,” and thus that these rights are implicit in the notion of limited government that is at the heart of our constitutional order.
This ruling was reaffirmed and strengthened two years later in Pierce v. Society of Sisters, a case in which the Supreme Court overturned an Oregon law requiring all children to attend public schools. The Pierce Court famously stated: “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Thus the Court once again recognized that parents have natural authority over their children that the state has an obligation to respect. And while the state does have a legitimate interest in ensuring that children receive an education that enables them to be responsible, law-abiding, self-supporting citizens as adults, the state exceeds the limits on its power when it pursues that interest in ways that infringe on the prior rights of parents—as Oregon did by not allowing parents to educate their children in private schools.
While both of these landmark cases involved education, parental rights are not limited to the educational arena, but encompass broad decision-making authority over children in all areas. Ruling in favor of the mother in a dispute with her children’s paternal grandparents about how often the children could visit them, the Court in Troxel v. Granville (2000) referred to “the fundamental right of parents to make decisions concerning the care, custody and control of their children” as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The justices argued that it is beyond the limits of state authority to “infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made,” thus confirming that it is unconstitutional for the state to interfere in the childcare decisions of fit parents.
The most basic of parental rights is the right to custody of one’s children, which is a prerequisite for the broader ability to direct children’s care and education. The Supreme Court explicitly affirmed this in Stanley v. Illinois (1972), a case about an unwed father whose children were declared wards of the state after their mother’s death, even though the father wanted custody, had been involved in his children’s lives, and had not been shown to be an unfit parent. Finding in favor of the father, the Court held that parents cannot be deprived of custody of their children without first being given a hearing and proved unfit (abusive or neglectful) in a court of law. Ten years later, in Santosky v. Kramer, the Court specified that the state may only terminate parental rights if it proves the parents unfit by at least a “clear and convincing evidence” standard.
The Troxel, Stanley and Santosky rulings make it clear that California’s proposed law runs afoul of the Constitution. For the law does exactly what these cases find to be beyond the limits of state authority: it both allows the California court to override parents’ judgments about whether or not medical gender transition is in their children’s best interests, and takes legal custody of children away from parents, without even a hearing attempting to show that the parents are unfit.
Transition as Healthcare?
Proponents of the law would of course see things differently, probably arguing, as some legal scholars and medical ethicists have, that denying “gender-affirming” medical treatments to children with gender dysphoria is contrary to children’s rights, perhaps even rising to the level of medical neglect and warranting state intervention, including (if all else fails) removing children from parents’ custody. Some have likened parents’ refusal to consent to puberty blockers for gender dysphoric children to the denial of insulin for a diabetic child, or to Jehovah’s Witness parents’ refusal to consent to a blood transfusion necessary to save their child’s life.
There are significant problems with these arguments. Because courts have a duty to respect parental rights, and reasonably presume that parents’ affection for and knowledge of their children typically lead them to act in their children’s best interest, they will only override parents’ refusal of medical treatment for their children when there is clear medical consensus that the treatment is beneficial, poses few risks, and is necessary to prevent a grave risk to the child’s life or physical health. Cases like insulin for diabetic children or life-saving blood transfusions fall into this category.
Parents who refuse “gender-affirming” medical treatments, however, obviously fall in a very different category. There is significant medical controversy about the nature and causes of gender dysphoria, and about the benefits and risks of hormonal treatments (and even social transition) for the alleviation of gender dysphoria, especially for children and adolescents.
Puberty-blockers not only aren’t FDA-approved to treat gender dysphoria; they also have significant health risks—including early osteoporosis, mood disorders, and possible interference with brain development. And unsurprisingly, when followed by cross-sex hormones, as is almost always the case, this treatment course can lead to sterility, sexual dysfunction, and increased risk of cardiovascular illness and certain cancers. Some have argued that these risks are worth taking, given the high suicide rates among gender-dysphoric youth. But the evidence that puberty blockers and cross-sex hormones actually decrease suicide risk is poor. Further, the numbers of tween and teen children—especially girls—identifying as transgender (often with no prior history of gender dysphoria) has skyrocketed in recent years, leading many to worry that social contagion may be a significant factor. Their worries are increasingly validated by the growing number of detransitioners. And many are beginning to doubt that minors can meaningfully consent to such life-altering treatments.
Indeed, health authorities in many countries, including Finland, France, and the United Kingdom, now urge much greater caution in the use of puberty blockers due to this increased recognition of their dangers and experimental nature. Sweden has even prohibited their use outside of clinical trials.
It is clearly untenable to claim that parents who are hesitant to rush their children into risky, controversial medical treatments of unproven efficacy are guilty of medical neglect. Therefore, even if California courts had jurisdiction to judge the fitness of out-of-state parents (which they do not), the claim that parents are unfit simply because they refuse to consent to “gender-affirming” medical treatments for their children is completely baseless. Rather, California’s proposed law does exactly what Troxel says the state may not do: it overrides parents’ judgment about what is best for their child simply because the state has a different view.
My argument is not a partisan one. For it applies also to those states (like Texas) that claim parents are guilty of abuse for pursuing “gender-affirming” treatments for their children. Given current divisions in medical opinion, loving and responsible parents may be convinced that such treatments are necessary for their child’s health. While others vehemently disagree, it is clearly within the parents’ sphere of constitutionally protected childrearing authority to seek a legal medical treatment for their child following the advice of the child’s doctors.
If states are convinced that “gender-affirming” treatments are so risky and experimental that they ought not to be legally available unless and until further research proves their safety and efficacy, they can ban or restrict such treatments, as some states have already done. While such measures have been sharply criticized as ideological or even bigoted, it is worth noting that these restrictions are actually quite similar to those being adopted in progressive countries like Sweden, and that the government does have the authority to regulate medical practice for the protection of public health. At any rate, such measures—unlike California’s proposed law, which is partially a response to them—do not run afoul of parental rights. After all, the right of parents to make medical decisions on behalf of their children is a right to choose among legally available treatments, not a right to demand that public health authorities approve or legalize treatments that have been deemed too risky or experimental.
While debates about how best to care for children with gender dysphoria are ongoing, one thing is clear: encouraging troubled children to run away from home and dividing them from their parents is certain to inflict great harm. No parent is perfect, and adolescents often find themselves at odds with their parents’ judgments (sometimes reasonably, but often not). But the law is wise to recognize that, in the vast majority of cases, the best way to protect the well-being of children is to defer to the judgments of their parents and protect the integrity of the family sphere.