In Planned Parenthood of Central Missouri v. DanforthJustice Harry Blackmun wrote in 1972 that “constitutional rights do not mature and only magically emerge upon reaching the age of majority defined by the state. Minors, as well as adults, are protected by the Constitution and they have constitutional rights”.
Despite this clear edict, the court has refused to allow children some of the most basic rights. In 1972, for example, this he held that “Juvenile offenders” have no constitutional right to a jury trial. In 1977, this ruled it the Constitution does not protect children from disciplinary corporal punishment in public schools. (At home too, most states take into account the use of mild physical force against children—or blows with a stick—even if it constitutes criminal assault between adults.) Children cannot marry at will (although numerous states they have no age limit and many allow children to marry with parental or judicial consent), vote or serve on juries.
The court has also considered it appropriate decrease the Fourth Amendment’s probable cause requirement for searches of children and their property on school grounds. Lower cuts have held that children do not have a 14th Amendment right to privacy that prohibits schools from communicating sensitive information to their parents, “even where private matters of sex are involved.”
All of which means that when the issue of pronoun preferences at school inevitably reaches the high court, a child’s right to choose their name and gender identity at school is unlikely to dominate a legal equation which implies the separate and distinct rights of parents and the state.
Which brings the discussion to the most salient issues.
Question: Do parents have the right to choose their children’s name and pronouns for use in public schools?
Answer: Parents have the right to direct the care, education, and mental health education of their children, but that does not mean controlling how public schools teach.
As with the constitutional right to access to abortion, which the Supreme Court annulled last June no protected from government interference under the 14th Amendment, the Constitution says nothing about parental rights. The right to decide how to raise children derives, instead, from the same provision of the Constitution that the court considered too vague to justify it. Roe v. Wade: The “due process” clause of the 14th Amendment.
In a line of cases dating back to the early 1920s, maintains the Court in Meyer v. Nebraska that the word “liberty” in the iconic phrase of the 14th Amendment, “life, liberty, or property,” has substantive connotations, “not[ing] not only freedom from bodily restraint, but also the right of the individual to hire, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and to bring up children, to worship God according to the dictates of their own consciences, and generally to enjoy those privileges long recognized by common law as essential to the orderly pursuit of the happiness of free men. So, while much scorned by the conservative right, the concept of “substantive due process” goes far beyond abortion care to protect the fundamental freedoms that most Americans take for granted, including the right to be parents without hesitation from the government.
In 2000, in a case called Troxel v. Granville, the Supreme Court in a split ruling affirmed a parent’s fundamental right under the 14th Amendment to supervise the care, custody, and control of a child. This case involved the two children of an unmarried couple whose father died. After the mother remarried, the father’s parents sued under state law for the right to visit their grandchildren. The Supreme Court ruled against the grandparents and found it reasonable to assume that the mother would act in the best interests of her children. Absent a threshold of harm or potential harm to the children, he reasoned, Washington State could not interfere with the mother’s role by granting rights to a third party.
If the court’s right-wing majority would strike down constitutional protections for parental prerogatives on similar grounds to those they decided RoeIt is difficult to predict fate — for example, that the text of the Constitution is silent when it comes to the rights of parents. However, given the ideological taint that the modern court has adopted, it is easy to imagine a different outcome than the Dobbs v. Jackson Women’s Health Organizationwho killed Roe.
Question: Does the state have the legal right to override the wishes of parents regarding students who identify as transgender or gender nonconforming?
Answer: The state has general power to regulate the education and welfare of children, but it remains unclear whether pronoun choice or gender identity qualifies as part of a child’s education or welfare child under the law.
In 1954, the Supreme Court in Brown v. Board of Education emphasized that “education is perhaps the most important function of state and local governments.” In addition, the court has endured that the state has “a pressing interest in the welfare of the child”, including that of “the unborn human being”, as underlined last year in Dobbs. The court also found that although the State can intervene in matters of child welfare, it does no affirmative obligation under the 14th amendment to protect abused children.
However, the court has yet to articulate how to strike a balance between parents’ rights and states’ authorities to regulate children’s education and welfare. numerous lower courts have acknowledged that not all public school decisions “strike at the heart of parental decision-making.” In other words, parents do not have the constitutional right “to tell a public school what it will and will not teach you.” Even as far back as Meyerthe Supreme Court specified that the interests of parents cannot automatically interfere with “the power of the state to prescribe a curriculum for the institutions it supports.”
Note, too, that states have additional public interests at stake here, such as ensuring that school environments are free from discrimination. For example, Massachusetts law provides that “no person shall be excluded from…obtaining the advantages, privileges and courses of study of [a] public school because of… gender identity”, which the the law defines as “appearance or behavior … different from that traditionally associated with the person’s physiology or sex assigned at birth.”
In foot on footthe lower court justified its dismissal of the parents’ case by emphasizing that Massachusetts’ anti-discrimination laws did not contain “exceptions to allow parents to override a school’s decision to support students who identify as transgender or not gender-appropriate.”
Then how could the decision of the Supreme Court on this issue?
In the absence of a constitutional amendment, the Supreme Court is the final arbiter of which rights are protected by the Constitution and which are not. The recent decision of the court in 303 Creative LLC v. Elenis sheds some light on how the conservative-leaning majority might approach a duel between a state’s right to determine curriculum standards or child welfare and the right of parents to direct children’s education, including decisions about their health and well-being.
In that case, the court was faced with a since-revised Colorado statute that prohibits discrimination in places of public accommodation, including on the basis of sexual orientation. A web designer who feared law enforcement if he ever refused to create a wedding website for a gay couple was sued, claiming the law violated his First Amendment rights to freedom of expression and the free exercise of their religion. The Supreme Court accepted only the free speech claim, holding that the anti-discrimination law must be struck down because it could coercively compel her to speak in support of marriages she does not endorse.
Although the foot on foot The case does not raise First Amendment arguments, the fact that the Supreme Court struck down one state’s antidiscrimination law in favor of another constitutional interest is telling.
If they are tasked with weighing the interests of transgender or gender nonconforming children and their public school guardians versus the interests of parents when making decisions about health care, education, and of his children, it is easy to see where the trajectory is headed. . Conservative “values” will probably win. Never mind that the Constitution itself says nothing about parents’ rights, much less says that school administrators adhere to parents’ choice regarding gender identity and pronouns.
The modern court majority already made that clear Dobbs that the theories of textualism—and the intellectual honesty that should come with adherence to the plain language of the Constitution in the first place—are not the touchstone of his judicial philosophy. Some rights that the Constitution is silent on are protected, and others are not.
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