The Mounting Urgency to Affirm Parental Rights

School starts soon, and this year, parents of K–12 children are likely to be greeted by new, well orchestrated assaults on parental rights provoked by the left’s strategy to promote “gender transitioning.”

Most Americans assume that parental decisions about the care, custody, and control of their children are fundamental, God-given rights supported by the Constitution, common law, and centuries of Western tradition. The progressive left is determined to eviscerate parental rights by using schools to drive a wedge between parents and children under the false flag of “gender transitioning.” So far, the left is winning.

Having inserted diversity, inclusion, and equity into public schools, the educational establishment has escalated, staking out “gender transitioning” as the way to subvert parental rights and the primacy of the family in civil society. These people have laid groundwork that is downright diabolical by labeling parents as adversaries against the best interest of their children.

How can this be? State and federal laws, as well as decades of Supreme Court rulings, are clear that until the age of majority, parents or guardians have defined rights and responsibilities, including financial support, making decisions on medical treatments, guiding moral education, and entering into contracts on behalf of a child. Parental rights may be terminated by a court in cases of documented chronic abuse or neglect, sexual abuse, abandonment, drug and alcohol abuse, and financial neglect.

Seizing on the emotional fragility of children confused about their sexual identity, departments of education in a handful of states, led by California, Massachusetts, and New York, have issued policies that make parental opposition to sex or name change a violation of a child’s human rights and grounds for the schools to usurp control from parents.

These policies are typically crafted by advocacy groups working with state departments of education with little to no parental input. Central to the purpose of these policies is withholding parental notification because parents are highly likely to oppose the process.

The “gender transitioning” advocates are correct on that score. The vast majority of parents oppose socially, chemically, and surgically altering children to look like the opposite sex — 64%, according to the Human Rights Campaign — or believe that it is their responsibility to guide their children through puberty to young adulthood. A poll by Parents Defending Education showed that 74% of parents who demand immediate notification on issues regarding their children.

New York State’s guidelines are typical. Quietly issued in June 2023 and titled “Creating a Safe, Supportive and Affirming School Environment for Transgender and Gender Expansive Students: 2023 Legal Update and Best Practices,” the guidelines were devised by 30 “stakeholders,” including state officials, advocacy groups, and trans students, but excluded parent groups.

The policy states: “School personnel’s acceptance of a student’s gender identity should require no more than a statement from the student expressing their preference. Schools do not need to require permission, letters from professionals or other proof of gender identity.” The policy places minors and school personnel in the driver’s seat. “The student is in charge of their gender transition and the school’s role is to provide support.”

Despite strong parental opposition and Supreme Court precedents, federal judges have bought in to the states’ policy arguments. In July, a California district court judge dismissed the parents’ assertion of parental rights, saying that the Chico Unified School District had a legitimate state interest in creating a zone of protection from “adverse hostile reactions.” At the time, the child was in elementary school.

In December 2022, a Massachusetts district court judge rebuffed parents who were belatedly informed of attempts to change their middle school child’s sex by saying that the state “recognizes gender identity as a personal characteristic deserving of protection from discrimination,” completely rejecting the parent’s 14th Amendment Due Process claim.

Both of these cases and others are headed to the appellate courts and ultimately to the Supreme Court, which has consistently ruled that parents have a fundamental right to rear their children. Two decisions stand out: Troxel v. Granville (2000) and Wisconsin v. Yoder (1972).

In Troxel, the Court ruled that parental rights are protected from the state by the 14th and 5th Amendments and reaffirmed the need for a “heightened protection against governmental interference” for these fundamental rights. The majority opinion stated that the right is “perhaps the oldest of the fundamental liberty interests represented by this Court.” In Yoder, the Court concluded that parental rights have been “established beyond debate as an enduring American tradition.”

State legislative efforts to overtly support social, chemical, and surgical intervention on children are facing headwinds. California’s legislation AB957, which requires a parent to affirm his child’s chosen gender identity or risk losing custody — has not passed either house. In New York, A276b/S762a, which allows any medical product that purports to treat sexually transmitted disease to be given to minors without parental consent or knowledge, is stuck in committee. A New York bill to allow minors to initiate a variety of medical procedures died in 2022.

In contrast, legislation to ban sex-obscuring procedures for minors has passed in Kentucky and Tennessee. Both laws survived federal court challenges in Thornburg v. Kentucky and L.W. v. Skrmetti, where the courts both held that the states have an interest in creating and enforcing their own laws and rejected the arguments of sex discrimination and due process.

Only a handful of states have passed parental bills of rights. Georgia did so in April, and legislation is pending in New Hampshire and Missouri. Legislation protecting parents’ rights failed in Colorado, South Dakota, and Wisconsin.

Despite the decades of clear precedents and a conservative-leaning Supreme Court, parents need to assert their prerogatives aggressively at the local, state, and federal levels. Gender rights advocacy groups, teachers’ unions, and progressive politicians believe that the sex discrimination and safe space arguments are their last best legal strategies to obliterate parental rights and bring the family under state control.

A hopeful sign is that politicians in very progressive states know that overwhelming majorities of parents oppose socially, chemically, and surgically modifying children to look like the opposite sex. The downside is that the politicians are relying on unelected bureaucrats in education departments to do their dirty work.