With the U.S. Supreme Court scheduled this fall to hear and rule on a novel challenge to the Tennessee law protecting minors from gender transition procedures, everybody wants to weigh in for and against the law. On Tuesday, 31 people describing themselves as “Republicans and political conservatives from diverse backgrounds who have served as federal, state, and local officeholders or as senior advisors to such officials” filed a brief opposing the Tennessee law and endorsing the challenge brought by the Biden administration’s Department of Justice.
Yes, you read that right. The brief claims to propound a conservative case against laws protecting children from the medical excesses of transgender medicine. It attempts to build this case based on the principles of parental rights and limited government. As you might expect, the case it builds is not very compelling.
“In our constitutional system of limited government, a state’s desire to take a side in culture-war disputes does not provide a basis to usurp parental judgment and family autonomy on sensitive matters like ensuring appropriate medical treatment,” it declared. “Parents know what is best for their children far better than the government does. … States have no business overruling the decisions of fit parents who make an informed medical choice for their children that is supported by their doctors ….”
“The authority [Tennessee] claims would open Pandora’s box,” the brief continued. “It takes little imagination to picture a different local government, state legislature, or even Congress enacting policies that run roughshod over the rights of parents.”
As evidence for this point, they cited the policies in California and 1,044 school districts that require school officials to lie to parents about their child’s gender identity. They cited a Maine law “permitting minors to obtain hormones for the purpose of gender transitions without parental consent” and a Washington law permitting homeless shelters to hide a trans-identifying minor’s location from his or her parents. They cited the Cincinnati Board of Education’s recommendation to consider parental non-affirmation of a gender transition as child abuse.
Parental rights and limited government are important. These various threats to parental rights from government overreach are real. Yet this brief assembles them improperly, creating a false picture that obscures what is really happening.
The evidence marshalled in this brief really shows that transgender ideologues have waged an aggressive campaign to convert children and sideline their parents. Transgender ideology fundamentally repudiates biological sex and undermines the vital role played by the nuclear family. It therefore represents an existential threat to parental rights. Already, families from Montana to Indiana to Maryland have lost custody of their children for not agreeing to a gender transition.
Where politically dominant, transgender activists aim to convert children over the objections of parents. Where it is not politically dominant, transgender activists often aim to convert children through deceiving and manipulating parents — as happened in the now-defunct transgender center at St. Louis Children’s Hospital.
Laws like the one Tennessee passed openly recognize this aggressive, anti-parent agenda and seek to protect parents and their minor children from falling victim to the con. The Tennessee legislature found good reason to believe that hospitals were colluding in this agenda because gender transition procedures are a huge “money-maker.” Thus, the laws passed in many states, including Tennessee, create a private right of action, which allows either the child or the parent to sue for damages for any injury caused by a gender transition procedure. Pandora’s Box is already open; Tennessee and likeminded states are working to close it.
Further undermining its own argument, the brief continues to argue that “The Tennessee law violates the Equal Protection Clause,” based on the Supreme Court’s redefinition of sex-based discrimination to include gender identity in its Bostock decision (2020). This is the primary argument raised by the ACLU, the SPLC, the Biden DOJ, and every left-wing challenge to SAFE Acts everywhere.
This is a surprising position for would-be proponents of limited government because Bostock redefined a U.S. civil rights statute through judicial fiat. If unelected judges with lifetime appointments can re-write laws simply by changing definitions, they can erase all limits to government.
For these reasons, most Republicans and practically all conservatives have rejected the argument put forward by this brief. This is evident from the fact that nearly every Republican-controlled legislature (26, to be exact) passed a law protecting minors from gender transition procedures. In five states, support for the measures were so overwhelming that bills were enacted over a governor’s veto, including vetoes by two Republican governors. In fact, not even all Democrats are persuaded of the arguments presented in this brief; Democrats crossed the aisle to help pass bills protecting minors from gender transition procedures in Louisiana, Nebraska, North Carolina, and Texas.
Americans have (or should have) the right to hold whatever opinions they choose. This not only leads to a diversity of political opinions, as captured by various labels — conservative and liberal, left and right, statist and libertarian — but even to opinions that conflict with the self-professed label. So, just as there is a small and unrepresentative group of “Evangelicals for Harris,” there appears to be a small and unrepresentative group of conservatives for gender transition procedures on minors.
Joshua Arnold is a senior writer at The Washington Stand.
