Conservative groups have long advocated for reducing government interference in parents’ decisions, particularly regarding school and healthcare choices for their children. However, the upcoming Supreme Court case on transgender care is dividing conservatives, with some backing Tennessee’s ban on puberty blockers and hormone treatments, which critics argue inserts the state into family medical decisions and undermines parental rights.
This has led to a surprising alignment, with several notable conservatives supporting the Biden administration’s challenge to the law. Former Virginia Rep. Barbara Comstock, an anti-Trump Republican, expressed concern, stating, “Since when does a conservative say, ‘The state knows what is best for my child?’” She warned that if the state can regulate such decisions, it opens the door for broader government intervention in other parental choices.
The Supreme Court will hear arguments on December 4 regarding Tennessee’s law, which bans gender-affirming care for minors and imposes penalties on doctors who violate the restrictions. The case does not address gender-affirming surgeries, as a lower court had previously dismissed challenges related to those procedures.
Although the Court declined to take up the issue of parental rights directly, the debate surrounding it is central to the case and could arise during the oral arguments. The case comes at a time when transgender rights are a contentious issue for Republicans, with figures like President-elect Donald Trump criticizing “transgender craziness” and Rep. Nancy Mace attempting to ban transgender women from using women’s bathrooms in federal buildings.
Tennessee, along with many conservatives supporting the law, argues that parental rights are not a factor here, asserting that states have the authority to regulate medicine for all ages. The state’s brief to the Supreme Court claims that adults themselves don’t have a constitutional right to demand access to specific medications, thus arguing the Biden administration’s appeal lacks legal merit.
However, the broader conservative community is reconsidering its stance on parental rights, especially as it relates to medical decisions for children. Twenty-six GOP-led states, including Tennessee, have enacted restrictions on gender-affirming care, but a few Republicans are questioning whether these laws infringe on parents’ rights as defined by the 14th Amendment.
Alex Lundry, a Republican strategist, noted that this represents a “reckoning” for the GOP, as many conservatives are calling for more parental control in areas like education. A group of current and former GOP officials and aides, including state lawmakers from Iowa, Kentucky, and Missouri, filed a brief opposing Tennessee’s law. Their stance reflects a traditional conservative view that medical decisions should be made by families, not the government.
In support of the Biden administration, a group of law professors highlighted the long-standing practice of families making medical decisions for their children, citing examples from colonial America, such as the decision to vaccinate children against smallpox. This brief, which aims to appeal to the conservative justices’ focus on history, was signed by conservative legal scholars like Steven Calabresi of Northwestern University.
For legal scholars like Yale Law Professor William Eskridge, the Tennessee case presents a “put up or shut up” moment for the Court, challenging the justices to apply their historical approach to the issue of parental rights.
While the Supreme Court did not accept a separate appeal from transgender youth and their families, which directly addresses whether Tennessee’s law violates the “fundamental right” of parents to make medical decisions for their children, the issue of parental rights remains a key point of contention.
The 6th US Circuit Court of Appeals, which allowed the Tennessee ban to take effect, dismissed parental rights arguments, noting that while parents typically know what’s best for their children, they do not have the right to reject laws democratically enacted by the state.
Notre Dame philosopher Melissa Moschella, speaking at a Federalist Society event, argued that parental rights are not absolute. She noted that even adults cannot freely choose any medication they wish, as those treatments are regulated by the government. “It’s not about the state interfering with parental decisions,” Moschella said, “but rather the state’s responsibility to protect children from a medical system it deems corrupt.”
Opponents of the ban point out that many of the treatments restricted for transgender minors are available to cisgender minors in Tennessee for other medical conditions. Ohio Republican Gov. Mike DeWine, who vetoed a similar ban, explained that for many parents, the decision to provide gender-affirming care is a matter of life and death. Despite his veto, Ohio’s Republican legislature overrode his decision, reinforcing the divisive nature of the debate on parental rights and transgender care.