Supreme Court’s transgender care fight creates conservative ‘reckoning’ over parental rights
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Protesters of Kentucky Senate Bill SB150, known as the Transgender Health Bill, cheer on speakers during a rally on the lawn of the Kentucky Capitol in Frankfort on March 29, 2023. Timothy D. Easley/AP
Conservative groups have long advocated for reducing government involvement in family decisions, particularly in areas like education and healthcare. However, the Supreme Court’s upcoming transgender care case is dividing conservatives, as many of these same groups are backing Tennessee’s law banning puberty blockers and hormone treatments for minors. Critics argue that such laws inject the state into family medical decisions and undermine parental rights.
As a result, some prominent conservatives are supporting the Biden administration’s challenge to Tennessee’s law. Former Virginia Rep. Barbara Comstock, an anti-Trump Republican, expressed concern about the law, asking, “Since when does a conservative say, ‘The state knows what is best for my child’?” She argues that allowing states to dictate medical decisions could set a dangerous precedent, where government intervention could override parental authority in other areas.
The case, set for Supreme Court arguments on December 4, revolves around Tennessee’s 2023 law, which bans gender-affirming care for minors and imposes civil penalties on doctors who violate the law. Notably, gender-affirming surgeries are not part of the case, as a lower court dismissed challenges related to those procedures. Although the Supreme Court has not directly addressed parental rights in this case, the issue is emerging in briefs and could be raised during oral arguments.
Transgender rights have become a major cultural issue for Republicans, with high-profile figures like President-elect Donald Trump and South Carolina Rep. Nancy Mace taking strong stances. Tennessee and its supporters argue that the case is about state authority over medical treatments, rather than parental rights. The state claims that, historically, states have had the power to regulate medical practices for people of all ages, and that adults do not have a substantive right to demand access to specific medications. This, Tennessee argues, undermines the Biden administration’s appeal.
Some conservative groups are aligning themselves with the parental rights argument, especially in other cases involving education and healthcare decisions. For instance, in Wisconsin, parents have challenged their school district’s policy of keeping transgender students’ pronouns and bathroom choices confidential from their parents. Anti-abortion groups have also fought for parental involvement in decisions related to minors seeking abortions. Twenty-six GOP-led states, including Tennessee, have enacted bans on some form of gender-affirming care for minors, but a few Republicans are challenging these laws, questioning whether parents have a right to direct their children’s medical care.
“This is a reckoning for the Republican Party,” said Alex Lundry, a GOP strategist who worked on Mitt Romney’s 2012 presidential campaign. Lundry, along with current and former GOP lawmakers, signed a brief opposing Tennessee’s law. They argue that parental rights, rooted in the 14th Amendment, should be respected when it comes to decisions about children’s medical care.
Brian Burgess, a Republican appellate lawyer, emphasized that conservative views traditionally value family judgment in medical decisions. A brief supporting the Biden administration, signed by legal scholars, highlighted the long-standing practice of families making medical decisions for their children, referencing the controversial historical example of parents choosing to vaccinate their children against smallpox in 18th-century America.
Yale Law professor William Eskridge, who co-authored the brief, sees the case as a crucial moment for the Supreme Court to uphold its historical focus on parental rights. “If you want to be a historical-focused court,” he said, “look at the history” of family medical decisions.
The Supreme Court’s decision to hear the Biden administration’s appeal, but not a separate case brought by transgender youth and their families, means that parental rights may not be directly addressed. In its ruling allowing Tennessee’s law to go into effect, the 6th U.S. Circuit Court of Appeals dismissed the argument that parents have an absolute right to make medical decisions for their children. The court stated that while parents generally know what’s best for their children, this does not grant them a right to reject democratically enacted laws.
Melissa Moschella, a professor of philosophy at the University of Notre Dame, argued that parental rights are not unlimited. She noted that even adults do not have an unrestricted right to choose their medical treatments, as these are regulated by the government. “It’s about the state trying to protect parents and especially their children from a medical establishment that the state has judged corrupt,” Moschella said during an event with the conservative Federalist Society.
Opponents of the transgender care bans argue that similar treatments are available for cisgender minors in Tennessee for non-gender-related medical issues. Ohio Gov. Mike DeWine, a Republican, vetoed a similar ban in 2023, citing the life-saving nature of gender-affirming care for some minors. “Parents have looked me in the eye and have told me that but for this treatment, their child would be dead,” he said. However, the state’s legislature later overrode his veto, pushing forward with the ban.
As the case moves forward, it will continue to spark a fierce debate over the balance between parental rights and state authority, a debate that is reshaping conservative views on government involvement in family matters. The Supreme Court’s decision could have lasting implications for both transgender rights and the broader issue of parental rights in medical and educational decisions.
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