The Volokh Conspiracy
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Ban on Gender Transition Procedures for Minors Doesn't Violate Parental Rights
From Poe v. Drummond, decided today by the Tenth Circuit (Judge Joel Carson, joined by Judges Harris Hartz and Gregory Phillips), upholding an Oklahoma statute that "prohibits healthcare providers from 'provid[ing] gender transition procedures' to anyone under eighteen."
Parent Plaintiffs assert a substantive Due Process claim arguing that SB 613 impinges on their fundamental right to make medical decisions for their minor children….
Parents have the right "to make decisions concerning the care, custody, and control of their children," which includes "to some extent, a more specific right to make decisions about the child's medical care," But we and the Supreme Court have held that parents do not have an absolute "right to direct a child's medical care." …
We … have consistently held that individuals do not have an affirmative right to specific medical treatments the government reasonably prohibits. We have held that although patients have a fundamental right to refuse treatment, the "selection of a particular treatment … is within the area of governmental interest in protecting public health." Thus, the government has the "authority to limit the patient's choice of medication," whether the patient is an adult or a child.
The parent-child relationship does not change our reasoning, and to conclude otherwise would allow parents to "veto legislative and regulatory polices about drugs and surgeries permitted for children." LAlthough parents have authority over their children's medical care, no case law "support[s] the extension of this right to a right of parents to demand that the State make available a particular form of treatment." In fact, the state's interest in a child's health may "constrain[] a parent's liberty interest in the custody, care, and management of her children." So our Nation does not have a deeply rooted history of affirmative access to medical treatment the government reasonably prohibited, regardless of the parent-child relationship….
As for gender transition procedures specifically, healthcare providers onlyrecently began providing gender transition procedures for minors. The medical community traditionally limited gender transition treatments to adults.In 1979, the World Professional Association for Transgender Health ("WPATH") published the first standard of care ("Standard") for treating gender dysphoria and recommended that healthcare providers only administer hormone and surgical procedures on legal adults.In 1998, WPATH revised their Standard to include puberty blockers and hormones to those older than 16 if the patient met certain criteria but still recommended that "the administration of hormones to adolescents younger than age 18 should rarely be done."
Not until 2001 did WPATH revise their Standard to allow for puberty blockers as soon as pubertal changes began but still recommended that hormone therapy not occur until the age of 16. In 2012, WPATH revised their Standards to permit puberty blockers and hormonal therapy from the early stages of puberty. This recent development in the medical field regarding gender transition procedures for minors shows that our Nation does not have a deeply rooted tradition in providing gender transition procedures to minors….
Seems correct to me; here's what I wrote about the subject June 30, quoting a Sixth Circuit decision that reached the same result:
Some people have asked: Why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti (which the Supreme Court just declined to review):
There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.
Washington v. Glucksberg puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….
Abigail Alliance hews to this path. The claimant was a public interest group that maintained that terminally ill patients had a constitutional right to use experimental drugs that the FDA had not yet deemed safe and effective. As these "terminally ill patients and their supporters" saw it, the Constitution gave them the right to use experimental drugs in the face of a grim health prognosis. How, they claimed, could the FDA override the liberty of a patient and doctor to make the cost-benefit analysis of using a drug for themselves given the stark odds of survival the patient already faced? In a thoughtful en banc decision, the D.C. Circuit rejected the claim. The decision invoked our country's long history of regulating drugs and medical treatments, concluding that substantive due process has no role to play….
As in these cases, so in this one, indeed more so in this one. "The state's authority over children's activities is broader than over like actions of adults." A parent's right to make decisions for a child does not sweep more broadly than an adult's right to make decisions for herself….
Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children. Plaintiffs counter that, as parents, they have a substantive due process right "to make decisions concerning the care, custody, and control of their children." At one level of generality, they are right. Parents usually do know what's best for their children and in most matters (where to live, how to live, what to eat, how to learn, when to be exposed to mature subject matter) their decisions govern until the child reaches 18. But becoming a parent does not create a right to reject democratically enacted laws. The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support. Level of generality is everything in constitutional law, which is why the Court requires "a 'careful description' of the asserted fundamental liberty interest."
So described, no such tradition exists. The government has the power to reasonably limit the use of drugs, as just shown. If that's true for adults, it's assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process. Any other approach would not work. If parents could veto legislative and regulatory policies about drugs and surgeries permitted for children, every such regulation—there must be thousands—would come with a springing easement: It would be good law until one parent in the country opposed it. At that point, either the parent would take charge of the regulation or the courts would. And all of this in an arena—the care of our children—where sound medical policies are indispensable and most in need of responsiveness to the democratic process.
I have argued that there should be a constitutional right to choose certain medical treatments for oneself in narrow circumstances (basically when the person is terminally ill, and seeks a possibly life-saving though unproven treatment). But even if I'm right, that would be quite a narrow right; and in any event, the Abigail Alliance en banc opinion, described in the excerpt above, rejected even that narrow argument.
Zach West, Audrey A. Weaver, and Will Flanagan of the Oklahoma Attorney General's office represent the state in the Tenth Circuit case.
