Conservatives need to do more than appealing to “parental rights” to protect children and youth from the zealots of the LGBT agenda. It offers us no standing for protecting children whose parents would invoke such a right in defense of sexually mutilating them.[1]
It is now a common argument on the Right to invoke “parental rights” to resist the encroachment of DEI and LGBTQ+ ideology. Governor Ron DeSantis passed the “Parental Rights in Education Act,” Governor Glenn Youngkin won his 2021 election on the issue of parents’ rights in schools, and other conservative states have passed similar legislation across the country, or intend to do so. As we begin to hear cases of trans-identifying youth being removed from the custody of their parents who do not accept their child’s “gender identity,” conservatives argue that parents have a right to determine how their children will be raised, regardless of what their children might think or what the state has to say about it.
On its face, this argument makes sense. In a free society, the private decisions of a family are, within reason, private and up to the family. As it is the duty of parents to take care of their children, not only in preventing them from various harms and sustaining their life, but also in forming them into good men and women who understand the ground of their own freedom and the proper use of their various faculties and gifts; so also is it the right of parents to exercise the reasonable discretion to make those decisions of how to raise those same children in light of their duties. This principle of natural right was widely recognized in the common law tradition, as well as modern international law. But that caveat–”within reason”–has never stopped the state from intruding into the home when the child’s life, safety, or well-being is at stake. Beating a child, subjecting them to unjust punishment, neglect, and other abuse are legitimate grounds for the state to intervene against parents abusing their authority over their children.
Conservative parents are concerned about the promotion of sexually explicit lifestyle choices in schools, such as the CDC’s proposed framework from 2016, promoting condom use, or the Guidelines for Comprehensive Sexuality Education, which is promoted on the United Nations Educational, Scientific and Cultural Organization (UNESCO) website. The Guidelines paper is especially concerning, insofar as it promotes teaching about masturbation to students in “Level 1,” defined as “middle childhood, ages 5 through 8; early elementary school,” and specifically says, “touching and rubbing one’s own genitals to feel good is called masturbation.” (pp.50-51) The Guidelines also teach that a “sexually health adult,” will “affirm one’s own gender identities and respect the gender identities of others,” (p. 16) and “act consistently with one’s own values when dealing with an unintended pregnancy.” (p. 17)[1] As sexually explicit books such as Gender Queer and Lawn Boy, which (according to reports) depict sex acts between adolescent boys and between men and children, are found in school libraries, parents are saying, “I have the right to opt my child out of that curriculum,” or “I have a right to know when my son starts being asked to be called ‘Stacy.’”
Likewise, as children increasingly identify as “transgender” or “gender diverse youth,” parents invoke their rights to protect their children from various social messages that seek to promote transgender practices on their children. No one disputes parental rights in the home, because parents can limit exposure to social media and television, control what reading material is consumed, and take other measures to ensure their child is protected against pernicious ideas. Outside of the home, this right comes into conflict with other public or private influences, such as schools, community centers, and health systems. Parents might assume that their rights over their children should outweigh other considerations, but that assumption cannot be taken for granted.
The pitfall of the argument in favor of parents’ rights is that it makes the decision for children to be exposed to information about sexual activity or access to puberty blockers a matter of a parent’s will. Under the logic of a “parents’ rights” argument against this sort of material, the issue at question is not whether the information is age-appropriate, (i.e., necessary for a child to be considered truly educated), or whether it promotes certain morally degraded choices such as abortion, fornication, sodomy, or transgender surgery, but rather that parents are being stripped of the choice to expose their children to these various “lifestyle choices.”
The crux of the issue is reached when we ask the question, “for whom is this material inappropriate?” Is it only a matter of choice amongst equal choices, with some parents preferring their children to learn about the values of waiting until marriage to have sex, while others prefer to teach their children about the potential pleasure of engaging in unnatural sex, for example? Or do the parents who object to their children learning about certain sexual acts assert more than a preference in their objection, and draw a clear moral judgment against those acts? In that case, the answer to the above question–who should be shielded from this material?–is “every child.”
And why? Because it is inappropriate for a child to exercise his or her sexual faculties before the child can understand the proper use and function of them, or have any need for using them, and to teach about the topic carries moral hazard that might result in irresponsible decisions based on the child’s impulses; to promote any such behavior is certainly immoral. I will not dive into an extended argument that it may be a short step from teaching children that sex is pleasurable and safe when there is consent to arguing that children can consent to sex at earlier ages, thus clearing the way for legitimizing pedophilia. I will only note the “Law of Merited Impossibility,” which told us that men would never enter women’s bathrooms and locker rooms, and that later, it would be great when it finally did happen, as we have now seen across the country. So also has the ratchet moved on every social issue in the last 60 years.
The parental rights argument cuts both ways, both in theory and as a matter of law. Some will object that just as parents have rights to shield their children from being taught about sexually deviant behavior, parents must also have a right to expose their children to the same behavior if they so choose. As a matter of law, the recent case of Eknes-Tucker v. Alabama essentially backs into this argument by striking down a law prohibiting sex-change operations or other forms of transgender surgery. While the ruling focuses on why Alabama’s law did not survive “heightened scrutiny” in banning these surgeries rather than focusing on parental rights (parental rights are never addressed), the holding refers repeatedly to the consent of young patients and of parents as a legitimizing factor in elective transgender surgery for adolescents. On this thinking, one would surmise that if the law banned such surgeries that were performed without parental consent, the 11th Circuit would not have seen a problem (though some states allow medical treatment for minors without parental consent).
Alabama, in seeking to ban the surgeries, argued that the “experimental surgeries” are harmful to adolescents and are being aggressively pushed by doctors. In judging the practices harmful and seeking to ban them, the state rendered a moral judgment against the practices for all parents and children, regardless of their own predilections. In enjoining the law, the 11th Circuit understood that a moral premise undergirded the law, although it misstated that purpose as if the law was intended to discriminate against a class of individuals: “Evidence Shows That SB184’s True Purpose Is To Give Legal Effect To Moral Disapproval Of Transgender Persons.” Under the parental rights approach, the ability of the state to protect children from irreparable physical damage would be severely limited by the purported right of parents to sign off on the sexual mutilation of their children.
In a related decision of the Sixth Circuit Court of Appeals, L.W. v. Skrmetti, the Court overturned a district court order enjoining a similar Tennessee law banning surgeries and other related therapies on the grounds that it infringed on the “fundamental right [of parents] to direct the medical care of their children.” In disagreeing with that premise, Judge Sutton wrote of the limits of parental rights, not only in scope but also against various other interests, such as that of the state under their respective police powers. Under this line of argument, parental rights must give way to greater considerations of the interests of the child; or put another way, parental rights are based on specific underlying duties to protect their offspring, duties that cannot be abrogated.
This dichotomy brings us back to the famous debates between Abraham Lincoln and Stephen Douglas in 1858. In the first debate, Douglas supported the text of the Kansas-Nebraska Act, which read “It is the true intent and meaning of this act not to legislate slavery into any State or Territory, or to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the federal constitution.” In other words, slavery was to be voted up or down by the people of the states. In the same way, parents are to be able to vote up or down on puberty blockers for their children.
What Douglas dodged and what Lincoln discerned was the substantive moral issue. In his 1860 Cooper Union address, he identified the crux of the issue, stating: “Most of them would probably say to us, ‘Let us alone, do nothing to us, and say what you please about slavery.’ But we do let them alone–have never disturbed them–so that, after all, it is what we say, which dissatisfies them. They will continue to accuse us of doing until we cease saying.” At the heart of the issue is the question of whether or not we celebrate or condemn the sexuality-related teachings in our schools; stated another way, the question is not what we choose, as Douglas would have us do, but whether that choice is good, and marked as thus in our words and actions.
Transgender activists seem to understand this well, arguing not for “live and let live,” with parents who oppose teaching transgender ideology to their children, but rather calling them a threat to their children (see the new Washington state law that harbors homeless children running away from their homes seeking “gender affirming care”). Eknes-Tucker praised transgender surgery as something that helps gender-dysphoric youth, and found that an injunction was necessary to protect them against the harm that would occur without a medical intervention. How long will it be until those pesky “parental rights” are swept away by courts that seek to protect children from parents who neglect to give them puberty blockers, hormone therapy, and so-called “sex change surgery”?
As Tom Klingenstein suggests, what is needed in this moment is to “get right with Lincoln.” We must adopt a posture not of cowering or retreating from the dark forces that seek to promote transgenderism and destigmatize pedophilia, but commit ourselves to the protection of all children. If it is wrong for all children to receive such “sexuality lessons,” and have such options promoted to them, then it is wrong for parents to allow, promote, or teach such lessons. Some things parents must never do. If this is one such practice, then it is child abuse and neglect to allow children to select transgender surgeries, puberty blockers, and other treatments, and to teach children things that are harmful to them, such as masturbation at an early age, or promoting “safe sex” rather than “committed sex.” This is not an invitation for the state to usurp the role of a parent, but to set limits of parental rights by standards of what is right.
The path forward is unclear. The “sexual liberation” agenda dominates our public square, running roughshod over our culture. The courts have reached contradictory conclusions about the constitutionality of laws banning transgender surgery for minors; the courts cannot even agree on a common lexicon to describe these procedures as a matter of law. But again we can take our inspiration from Lincoln’s statesmanship. During his 1860 presidential campaign, Lincoln’s pragmatic policy, consistent with his understanding as to the terms of the Constitution, was to ban the expansion of slavery in the states, but leave it alone where it existed. Even after secession, Lincoln only extended emancipation to territories in rebellion and under the control of the Union army. Only when the tide had turned during the Civil War did he seek total emancipation. But he consistently denounced the moral hypocrisy of slavery, and he sought to teach the principles of the Declaration of Independence, that “all men are created equal.” In our case, we can look to ban barbaric sexual surgery or related practices where there are legislative majorities that are able and ready to do so, and recast the argument against sexualized curricula and transgender surgeries everywhere else.
Parents are entirely correct to be upset about the sexual harms that threaten their children. They should not rely on simple slogans of “parental rights,” but to recognize that the agenda that is being offered in the name of liberation, authenticity, and happiness is a lie that will leave their children depressed, confused, and in some cases, deformed. We need parents to stand up for what is genuinely good for children. As conservatives participating in the legal sphere, we must offer a more principled basis for not only the protection of their children, but also of children everywhere.
[1] In a slightly funny aside, searching for the Guidelines triggered my work computer’s firewall under the “pornography” category. Perhaps a document that I cannot view on a work computer has no place in any school.
