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Parental rights, pronouns, and healthcare

Parents don’t check their rights at the schoolhouse door

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Parental rights, pronouns, and healthcare
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American courts have long recognized that parents have a right to make key decisions about bringing up their children. This includes choosing educational options outside the public schools. But for children in public schools, how far do parental rights extend? Certainly, schools make many decisions about how to teach subjects, how classrooms are run, and more. Recently, some schools and social workers have claimed that children can decide on their gender identity without their parents’ knowledge, or indeed contrary to parents’ wishes. This has teed up conflicts over how far a school can go legally in contradicting parental decisions.

A recent Wisconsin case illustrates the conflict. A biological girl in a Waukesha County middle school began to question her gender identity. The public school said it would follow the child’s preference as to gender identity—even though it was contrary to the directions of the child’s parents. The parents withdrew the child from the school. Soon thereafter, according to the court’s findings, the child “concluded that she did not want to transition genders.” These parents and others in the district then filed suit against the school. They argued that the school infringed constitutionally protected parental rights when it disregarded the parents’ guidance.

A century ago, Supreme Court precedent established protection for parental rights, based on the Constitution. Those early precedents held that parents had the right to make major decisions about the child’s schooling. In 1922, the state of Oregon had tried to outlaw private schools—a none-too-subtle effort to suppress Catholic schools, with the support of the Klan. When the matter reached the Supreme Court in 1925, the Court said that the state was violating the Constitution.

But these early decisions leave many questions unanswered. One is what precisely parents can demand of a school that they choose. For when parents select a school for their children, they consent to some degree of school decision making. Parents cannot micromanage what happens in school, even in the name of parental rights. Imagine a parent comes to the school one day and tells a teacher, “I don’t like your math curriculum’s approach to teaching fractions. I have written my own curriculum for my child. Please teach using this curriculum.” Does the parent have a right—a constitutional right no less—to demand that the teacher use his bespoke math curriculum for his child? It would be impossible to run a school system in that way. Schools must have some ability to decide on curriculum, some freedom from parents’ ability to dictate the details of each school day.

Schools are not free to pick between student autonomy and parental authority. Constitutional law mandates that the school defer to the parents on this issue.

But when it comes to a child’s sex or gender identity, the frame of reference can’t be just curricular decisions. In the Wisconsin case, there was undisputed evidence that decisions about a child’s gender—even as (apparently) minor as selecting pronouns—implicated the child’s health. And this was crucial for resolving the case. The Wisconsin court said parental rights trump the school’s rights when it comes to making medical treatment decisions for a child. As the court observed, the school couldn’t “administer medicine to a student without parental consent.” (Indeed, the school couldn’t even “require or allow a student to participate in a sport without parental consent.”) In the same way, the school “can not change the pronoun of a student without parental consent without impinging on a fundamental liberty interest of the parents.”

Schools don’t get to decide on gender identity the same way they decide on curricula and schedule for recess. Parents, for their part, can make decisions about medical treatments for their children without micromanaging the school day. To put it in other terms, schools are not free to pick between student autonomy and parental authority. Constitutional law mandates that the school defer to the parents on this issue. As people on both sides of the gender identity debates acknowledge that there is a healthcare component to sex and gender identity, schools will find it hard to say that they ought to simply follow the decisions of minor children. To the extent that this framing gains traction, parents will have a powerful way of presenting their case—not just to courts, but also to school board meetings and conferences with teachers and school administrators.

The healthcare angle can be helpful for parental rights proponents in the school setting. But there will still be challenges for concerned parents. The Wisconsin case put a lot of emphasis on medical testimony. But the medical profession itself is riven with debates about how to handle matters of gender identity. A school really committed to fighting parents on this could retain experts of its own who may disagree with a parent’s decision of how to handle a child’s identity crisis. Advocates will doubtless seek to bolster their positions by relying on expert analysis that either supports or criticizes a particular position. But so long as there is medical debate, it’s going to be trickier for a school to disregard a parental decision on point. Whatever leeway schools have in picking curriculum does not extend to selecting treatment plans for children’s healthcare. One can only wonder how many schools really want that responsibility anyway.

Lael Weinberger

Lael Weinberger is a lawyer and historian. He is a fellow of the Constitutional Law Center at Stanford Law School.

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