The Constitution, Parental Rights, and Transgender Treatment for Minors

This past week, the Supreme Court handed down its decision in the United States v. Skrmetti, which denied a claim of a transgender girl under the Equal Protection Clause of the Fourteenth Amendment to strike down Tennessee Law SB1—the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity. Just after that decision, her mother, Samantha Williams, wrote a powerful and moving Op-Ed in the pages of The New York Times about the insensitive way that the Court refused to hear the simple pleas of her and her husband: “Let us do our job as parents” and “What happened to all their talk about parental rights?” Her daughter’s case did involve the use of puberty blockers and estrogen, but did not involve any sex change operation, although most other cases, including the companion case here, involve gender transition.

There is a deep disconnect between Williams’ claim for parental rights and how the case was teed up before the Supreme Court. There, the issue of parental rights was dismissed from the case, which solely concerned the claim that the denial of treatment violated the Equal Protection Clause. In its modern application, everyone knows the essential constraint in equal protection law. The first is that some distinctions must always be made for the legal system to function at all, but some of these distinctions are off base. But which are which? Thus, we could not run a legal system unless we were allowed to set a minimum driving or retirement age. Racial classifications are much harder to defend, and they are always subject to strict scrutiny. Sex, the most fundamental characteristic of any human being, falls in a muddled middle category. There are situations for which the distinctions seem wholly arbitrary, as with voting. But there are other cases where sex-based classifications have become customary, not only in sports such as basketball and volleyball, but also in chess and bridge. The right balance remains elusive in many other areas, including how collegiate sports should be funded, when college football is a huge revenue raiser with no obvious female equivalent, and the bitter debate over whether men who declare themselves women should be allowed to compete in female athletic events—a position to which I am strongly opposed.

In these choppy waters, the first question is whether the prohibitions here are based on sex. To orient the discussion, it is easy to apply a rule against sex discrimination if the Tennessee statute had imposed its prohibition solely on biological girls seeking this treatment while letting biological boys have full access to those same treatments. But in this case, the statute covers both boys and girls, and denies to individuals of both sexes the same kind of treatment, one that would produce a change in sexual identity. It is therefore possible to respect the demands of the Equal Protection Clause without having to turn intellectual somersaults. Justice Sonia Sotomayor thinks that there is a form of sex discrimination on this ground:

Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Right off the bat, her argument suffers from two fatal defects. First, it does not advance any equal protection claim in the slightest. The children of each sex are barred equally from having treatments that would either ease or bring about the transition to the other sex. It is no violation of equal protection law to apply identical prohibitions on members of both sexes, whether or not the practices in question were unprecedented or customary. Even this categorical response raised some concerns for both Justices Samuel Alito and Amy Coney Barrett on whether transgender status constituted a suspect class, which Justice Alito found elusive to categorize, and Justice Barrett rejected, in part, because it is not an immutable trait identifiable at birth. In the abstract, it is challenging to determine whether this status is suspect or preferred, given the significantly different approaches taken by the Biden and Trump administrations to so-called gender-affirming care, a term with a latent political bias. Tennessee also treats transgender children as a separate class but reaches the opposite conclusion that legislation is needed to protect youthful class members from harmful surgical and medical interventions, often leading to irreversible maladies.

Faced with these objections, Justice Sotomayor goes further astray by framing the case as dealing with some abstract insistence that the question is whether girls “look like” boys or the reverse. It is instead about the nature of the biological transformations and their impact on long-term health prospects for the children so treated. Only Justice Clarence Thomas challenged the anodyne nature of the Sotomayor rendition, when he broke free of equal protection talk to examine the medical effects from the various hormonal and surgical options that have been stoutly defended by WPATH—the World Professional Association for Transgender Health. It was not a pretty picture. He cited, for example, the exhaustive Report of Dr. Hilary Cass, followed by hair-raising descriptions of the extreme surgical procedures for girls that involved the surgical removal of breasts and the efforts to use phalloplasty to create a pseudo-penis out of skin gathered from other parts of the body. For boys, it involves the removal of testicles and the creation of a pseudo-vagina. Procedures of this complexity always risk major complications, and they surely lead to the end of fertility. The clear implication of his position has nothing to do with the semantic issues that dominated the other opinions, which were characterized by their elaborate definitional webs. But what it does do is raise the question of child abuse in these cases, which is a well-established exception to the dominance of parental rights

The crucial error in this case is that it applies the wrong standard. As Williams suggests, the correct question is whether the state should displace parental control. The Chief Justice uses the rational basis test to wash his hands of all substantive issues when he concludes that it is not the role of the Court to second-guess medical judgments in hotly disputed areas. I have argued to the contrary that it is strictly necessary to confront these thorny issues head-on. Thus, within the natural law approach that I favor, it is inconceivable that the state could use a rational basis test to justify a general law that takes children away from their parents on the grounds of a respected sociological study finding that placing children in the care of the state will reduce the frequency of racist or sexist thought and behavior. And more concretely, California has taken a substantial step in that direction through its Transgender, Gender Diverse and Intersex (TGI) Inclusive Care Act, which is intended to allow schools to refer students for transgender help without informing parents of their decision. The rational basis test could tolerate that result on the strength of a claim that disclosing this information to parents could result in irreparable harm to the children, without acknowledging that it could also protect them from rash decisions made by physicians with strong ideological commitments who favor prompt interventions that coincidentally align with their financial interests.

The upshot is that in all these cases, the natural rights of parents (ones that necessarily precede the formation of the state) should never be overridden without some clear and convincing error to the contrary. Examining the specific facts of the Williams case, this modest intervention should not be superseded by state command. However, if one focuses attention on the much more invasive procedures referred to in the Thomas opinion, two conclusions can be drawn. First, the state should never be able to displace parental rights to order major invasive procedures for their children over the opposition of the parents. The prohibition under the statute only applies to minors, such that these children, upon reaching maturity, can enter into a program that allows for these changes, usually with more stringent safeguards than those found here. Second, analytically, the situation is more difficult in these cases where the parents support the major changes the child desires. 

As noted before, any claim to override parental preferences on the grounds of abuse must meet a more stringent standard than rational basis. So at this point, all the evidence advanced by Justice Thomas and the additional evidence presented, for example, by the state of Alabama in its amicus brief must be weighed against the review of the evidence that Judge Helene White offered for the plaintiffs when Skrmetti was in the Sixth Circuit in L.W. v. Skrmetti (2023). That question is now being tested through litigation brought by individuals who now regret their initial decisions and seek to recover damages for the psychological and physical harm that led to their detransitioning. And so, the gates open to admit a huge range of evidence, which will vary from case to case on both sides of the issue, with a uniform result highly unlikely, given doubts everywhere.

The reams of evidence required in these cases should not, however, obscure one point that should be undisputed but is not. Those of us who have serious doubts about gender-affirming medical interventions on minors have no categorical objection whatsoever when adults undergo such procedures, but are concerned that they receive some independent advice before making any such decision. But what is highly objectionable is the Trump Executive Order that barred people from serving or enlisting in the military service, which has been blocked three times already. Here, at least, these cases should not be decided en masse, but rather on a case-by-case examination of health status before removing around 9,000 to 14,000 service members from service, whom Trump has targeted. His view is that transgender people as a group are unfit for service, without asking about their individual performance or any proof that they are unfit for duty. Skrmetti must be confined to its proper context.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013. Epstein is also the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago.