Parental Rights Just a Distraction From Real Issues in Skrmetti

At oral argument in United States v. Skrmetti on Dec. 4 at the US Supreme Court, most justices seemed skeptical of the federal government and American Civil Liberties Union’s opposition to Tennessee’s law protecting children from gender-transition procedures. Wanting to ignore this, some opponents have tried to shift the focus to a sideshow—by highlighting a few passing references to parental rights.

The plaintiffs who brought this suit asked the Supreme Court to consider the groundless claim that parents have a constitutional right to subject their kids to experimental medical procedures with demonstrated risks and unproven benefits. But the court declined.

Though the court decided not to review that issue, Justices Amy Coney Barrett and Brett Kavanaugh briefly mentioned parental decision-making at the oral argument. But neither lent any credence to the argument. Still, that hasn’t stopped some from speculating that laws like Tennessee’s are still vulnerable to challenge on parental rights grounds.

For starters, consider what the federal government has already said about that issue. It told the Supreme Court in this very case that the parental rights question “does not warrant” review because no other federal court of appeals has accepted that claim. But at least three of those courts—the Sixth, Seventh, and Eleventh circuits—have explicitly rejected it.

And the government wrote that the parental rights claim doesn’t “satisfy this Court’s traditional certiorari standards.” In other words, the government conceded the issue wasn’t an “important” question that should be decided by the court, and that the court of appeals’ rejection of that claim doesn’t conflict with relevant decisions of the Supreme Court. Those concessions—from a federal administration that has embraced gender ideology hook, line, and sinker—are devastating.

Consider also that the Supreme Court doesn’t typically grant review on weaker arguments while leaving stronger ones behind. On the contrary, it generally does the opposite. The court’s decision not to take up the parental rights question—while granting review of the equal-protection issue—is further evidence that the challengers’ parental rights arguments are lacking.

There’s good reason why every federal court of appeals to have addressed these parental rights arguments has rejected them. The Constitution protects rights that are deeply rooted in the history and tradition of our nation. But there’s no history or tradition of parents overriding the states’ decisions to outlaw medical procedures that it reasonably determines are too risky for kids.

The harms of these procedures are undeniable. The circuit court in this case acknowledged the risk of infertility, cardiovascular damage, and sexual dysfunction. These are serious harms to inflict on children far too young to appreciate what much of this means.

Also chilling is the lifelong plight of detransitioners—those who later regret submitting to these experimental procedures when they were kids. Some women can’t breastfeed their newborns because of the surgeries they endured. Others suffer constant pain from all that their doctors put them through.

This explains why the European countries that pioneered these procedures for kids—places such as the UK, Norway, Sweden, and Finland—are sharply pulling back. Not only are those countries recognizing the harms, but they are also observing the absence of benefits. According to a 2024 report for the UK’s National Health Service, the “evidence does not adequately support the claim that gender-affirming treatment reduces suicide risk.”

And the evidence from Europe continues to mount. Indeed, on Dec. 11, the UK indefinitely banned puberty blockers for minors because of their “unacceptable safety risk.”

Imagine the implications if the Constitution gave parents the right to subject their children to experimental medical procedures. A mother could demand that her child receive medical marijuana even though the state outlaws it. Or a father could insist on subjecting his daughter to dangerous drugs with no proven benefits in treating her emotional distress.

This isn’t to say the Constitution doesn’t protect parental rights. It surely does, as the Supreme Court has long recognized. But it’s not a blank check licensing anything a parent demands.

Rather, the Constitution protects the exercises of parental authority that are rooted in our historical tradition. Though that doesn’t include demanding outlawed procedures, it does include objecting to unwanted medical interventions. That is why a public school can’t leave parents in the dark while it encourages children to start down the transition path by identifying as the opposite sex.

Parental rights are essential, but they provide no lifeline to litigants trying to bring down laws protecting kids from these dangerous medical procedures. The post-argument clamor about this issue is little more than an effort to distract from how badly oral argument went for the proponents of gender ideology.

The case is United States v. Skrmetti, U.S., No. 23-477, argued 12/4/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jim Campbell is chief legal counsel for Alliance Defending Freedom. Campbell served as Nebraska’s solicitor general from January 2020 to March 2023.

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