“Gender-affirming care” is not a right

With the Supreme Court’s annual term reaching an end, and so many decisions coming out in these final two weeks of June, the court is also leaving us with a cliff-hanger for next year. In one of its final orders before beginning its summer recess, the court agreed to hear the case of United States v. Skrmetti next fall, setting up a showdown over a state’s right to regulate transgender medical interventions for children.

The Biden administration and some parents of the children who wish to continue their gender transition are making a bold claim: that the U.S. Constitution prohibits the states of Tennessee and Kentucky from regulating medical practice—on children—in an area of uncertain science. That is an uphill claim on any of the three points.

First, states have long regulated medical practice. All doctors in the United States must hold a license from a state medical board in order to practice medicine, and they can lose that license for unprofessional or unethical conduct. States also subject doctors to malpractice lawsuits in their courts so that when they make significant mistakes, they have to compensate their victims.

Second, states have a particularly strong interest in protecting vulnerable persons in society, like children. Minors are unable to make major decisions on their own before age 18, a rule we hold as a society, and a rule based on well-established science showing that young brains are not adequately developed. And just as the state has a special concern for the elderly or mentally handicapped, the state educates and protects its children with a solicitude that grants it regulatory power it would not enjoy concerning an adult.

Third, states have greater policy-making flexibility in areas of uncertain science. Judges do not have the same tools as legislatures to collect and consider information, science, public values, and policy concerns. So, courts are rightly cautious to wade into complicated and underdeveloped areas of public policy, rightly preferring to leave those decisions to the elected legislators who are more in touch with current public sentiment.

On all counts, Tennessee and Kentucky start in a strong position. Their position is even stronger when we look to a technical legal question: Do the plaintiffs have a right that is deeply rooted in the history and tradition of the country? At a certain broad level of generality, of course, the answer is yes. The right of parents to direct the upbringing of their children is well-established in the history and tradition of this nation, and conservatives have been among the foremost champions of that tradition when the left has tried to strip children from their parents in favor of progressive public education or other causes.

But at any more granular level, the answer comes into sharper relief. Consider, as a comparison, the practice of some school districts of not informing parents when their children undergo a “social transition” between genders at school. The right of parents to basic information about their children’s performance and health in school is well established and accepted. Put differently, we would all recoil at the idea that school districts can intentionally hide important information from parents. It’s equally straightforward to say that the Constitution has not historically protected the right of parents to subject their children to unproven, experimental medical treatments (indeed, it likely does not protect the right of adults to subject themselves to experimental medical treatments).

Decades ago, the U.S. Supreme Court took up a question of trendy science in the case known as Buck v. Bell in 1927. In its decision, the court upheld a eugenics-inspired sterilization law by declaring: “Three generations of imbeciles are enough.” That case is widely regarded as one of the preeminent disasters on the court’s historical record, right up there with Plessy v. Ferguson. The court similarly grappled with, and was ultimately embarrassed by, its embrace of trimester science in Roe, which was dumped even by its supporters in favor of viability, which itself proved unworkable as the science kept evolving. In this case, the court should learn its lesson and leave the science and policy to the legislatures.