In Planned Parenthood of Central Missouri v. Danforth, Justice Harry Blackmun wrote in 1972 that “constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.”
Despite that clear edict, the court has refused to allow children some of the most basic rights. In 1972, for example, it held that “juvenile delinquents” do not have a constitutional right to a trial by jury. In 1977, it ruled that the Constitution does not protect children from disciplinary corporal punishment in public schools. (In the home too, most states allow for the use of mild physical force against children — or spanking — even if it would constitute criminal assault between adults.) Children cannot marry at will (although numerous states have no age floor and many allow children to be married off with parental or judicial consent), vote or serve on juries.
The court has also seen fit to diminish the 4th Amendment’s probable cause requirement for searches of children and their property on school grounds. Lower courts have held that children do not have a 14th Amendment privacy right that prohibits schools from communicating sensitive information to their parents, “even when private matters of sex are involved.”
All this means that when the issue of pronoun preferences in school inevitably reaches the high court, it is unlikely that a child’s right to choose their name and gender identity in school will dominate a legal equation that implicates the separate and distinct rights of parents and the state.
Which brings the discussion to the more salient questions.
Question: Do parents have a right to choose their child’s name and pronouns for use in public schools?
Answer: Parents have a right to direct their children’s mental health care, upbringing and education — but that doesn’t mean controlling how public schools teach.
As with the constitutional right to abortion access, which the Supreme Court last June nullified as not protected from government interference under the 14th Amendment, the Constitution says nothing about parental rights. The right to decide how to raise one’s children instead derives from the same provision of the Constitution that the court found too vague to justify Roe v. Wade: The “due process” clause of the 14th Amendment.
In a line of cases dating back to the early 1920s, the Court held in Meyer v. Nebraska that the word “liberty” in the 14th Amendment’s iconic phrase, “life, liberty, or property,” has substantive connotations, “denot[ing] not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Despite being heavily scorned by the conservative right, therefore, the concept of “substantive due process” goes far deeper than abortion care in protecting foundational liberties that most Americans take for granted — including the right to parent without second-guessing by the government.
In 2000, in a case called Troxel v. Granville, the Supreme Court in a splintered ruling affirmed parents’ fundamental right under the 14th Amendment to oversee the care, custody and control of a child. That case involved an unmarried couple’s two children, whose dad 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, finding it reasonable to assume that the mother would act in the best interests of her children. Absent a threshold showing of harm or potential harm to the children, it reasoned, the state of Washington could not interfere with the mother’s role by granting rights to a third party.
Whether the court’s right-leaning majority would strike down constitutional protections for parental prerogatives on grounds similar to those that decided Roe’s fate — e.g., that the text of the Constitution is silent when it comes to parents’ rights — is tricky to predict. Given the ideological taint the modern court has embraced, however, it’s easy to imagine an outcome different than Dobbs v. Jackson Women’s Health Organization, which killed Roe.
Question: Does the state have a legal right to override parents’ wishes regarding students who identify as transgender or gender nonconforming?
Answer: The state has a general power to regulate education and child welfare, but it’s not yet clear whether pronoun choice or gender identity qualify as part of a child’s education or welfare under the law.
In 1954, the Supreme Court in Brown v. Board of Education underscored that “education is perhaps the most important function of state and local governments.” Additionally, the court has held that the state has “an urgent interest in the welfare of the child”— including that of “the unborn human being,” as underscored last year in Dobbs. The court has also found that although the state can intervene in child welfare matters, it has no affirmative obligation under the 14th Amendment to protect abused children.
Nonetheless, the court has yet to articulate how to strike the balance between parental rights and the states’ authorities to regulate education and the welfare of children. Numerous lower courts have recognized that not all decisions by public schools “strike at the heart of parental decision-making.” In other words, parents do not have a constitutional right “to tell a public school what his or her child will and will not be taught.” Even as far back as Meyer, the Supreme Court specified that parental interests cannot automatically interfere with “the state’s power to prescribe a curriculum for the institutions which it supports.”
Keep in mind, as well, that states have additional public interests at stake here, such as ensuring that school environments are discrimination-free. For example, Massachusetts law provides that “no person shall be excluded from … obtaining the advantages, privileges and courses of study of [a] public school on account of … gender identity,” which the law defines as “appearance or behavior … different from that traditionally associated with the person’s physiology or assigned sex at birth.”
In Foote, the lower court justified its dismissal of the parents’ case by emphasizing that Massachusetts’s anti-discrimination laws contained no “exceptions to permit parents to override a school’s decision to support students who identify as transgender or gender nonconforming.”
So, how might the Supreme Court rule on this issue?
Absent a constitutional amendment, the Supreme Court is the ultimate arbiter of which rights the Constitution protects and which rights it doesn’t. The court’s recent decision 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 parents’ right to direct the upbringing of children, including decisions regarding their health and well-being.
In that case, the court had before it a since-revised Colorado statute banning discrimination in places of public accommodation, including on the basis of sexual orientation. A web designer who feared enforcement of the law if she were to one day refuse to create a wedding website for a gay couple sued, claiming that the law violated her First Amendment rights to free speech and the free exercise of her religion. The Supreme Court took up just the free speech claim, holding that the anti-discrimination law must fold because it could coercively force her to speak in support of marriages that she does not endorse.
Although the Foote case does not raise First Amendment arguments, the fact that the Supreme Court overrode a state’s anti-discrimination law in favor of another constitutional interest is telling.
If tasked with weighing of the interests of transgender or gender-nonconforming children and their public-school protectors versus the interests of parents in making decisions regarding the health care, education and upbringing of their children, it is easy to see where the trajectory is going. Conservative “values” will probably win. Never mind that the Constitution itself says nothing about parental rights, let alone direct that school administrators adhere to parental choice regarding gender identity and pronouns.
The modern court’s majority already made clear in Dobbs that theories of textualism — and the intellectual honesty that should come with adhering to the Constitution’s plain language first and foremost — is not the touchstone of its judicial philosophy. Some rights that the Constitution is silent on are protected, and some aren’t.