Court Will Hear Parental Rights Case Related to Minors Seeking "Gender-Affirming Treatment"

The Question Presented from the petition, which the Court just granted:

The "interest of parents in the care, custody, and control of their children[] is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville (2000). But that right is mere rhetoric if federal judges bar parents from court via a miserly interpretation of standing doctrine—a question, as three Justices recently recognized, that is of "great and growing national importance." Lee v. Poudre Sch. Dist. R-1 (Alito, J., statement).

It is certainly important to Petitioners, who are parents of gender-confused children (including one child who previously ran away) and who do not wish to affirm that confusion. They challenged Washington laws designed to give runaway minors "gender-affirming treatment" without parental notice or consent. But despite their being the challenged laws' target, and despite their alleging specific current harms and a substantial risk of specific future harms to their ability to parent, the Ninth Circuit held that Petitioners lacked Article III standing.

The question presented is:

Whether parents have standing to challenge a law or policy that deliberately displaces their decision-making role as to "gender transitions" of their children, and in so doing creates present and likely future impediments to their ability to parent their children as they deem best for them.

And from the State's response, which urged the Court not to grant review:

2023 amendments to Washington law transferred the responsibility to notify parents about runaway youth from licensed homeless shelters to the state's child welfare agency, which also must offer family reconciliation services and behavioral health referrals to the youth and their family. Petitioners are parents and organizations who challenged the revised laws, basing their claim of injury on their worry that at some point in the future, their children might identify as transgender, then might run away, then might seek refuge with a licensed shelter, then might decline reconciliation services, then might accept a referral for behavioral health services, and then might ultimately receive gender-affirming care. Petitioners alleged that this potential chain of events affected their parenting style and might affect their children at some future point.

The lower courts found that any changes in parenting style were self-imposed, and that this theoretical chain of events was too speculative to show that the challenged laws have injured or will likely soon injure Petitioners, and dismissed the case for lack of Article III standing.

The question presented is:

Whether Petitioners lack standing to challenge state laws that impose no obligations on them based on their speculation that the laws may someday affect their families?

And a summary of the laws from the decision below:

Enacted in 1985, Wash. Rev. Code § 71.34.530 was passed as part of a comprehensive law "ensur[ing] that minors in need of mental health care and treatment receive appropriate care and treatment." 1985 Wash. Sess. Laws, ch. 354, § 1. It provides that any minor aged 13 and older "may request and receive outpatient treatment without the consent of the adolescent's parent." Outpatient treatment includes non-residential programs offering, inter alia, mental and behavioral health care….

Enacted in 2023, ESSB 5599 approved a set of amendments to Wash. Rev. Code § 13.32A.082. That law, which was enacted in 1995, sets forth a system of notification requirements that apply when a licensed youth shelter "shelters a child and knows at the time of providing the shelter that the child is away from a lawfully prescribed residence or home without parental permission." Upon admitting such a child, the shelter "must contact the youth's parent within 72 hours, but preferably within 24 hours." However, in the presence of "compelling reasons," including any "[c]ircumstances that indicate that notifying the parent or legal guardian will subject the minor to abuse or neglect," the shelter may forego contacting the child's parents and contact the Washington Department of Children, Youth, and Families (DCYF) instead. Upon contact, DCYF must "make a good faith attempt to notify the parent that a report has been received and offer services to the youth and the family designed to resolve the conflict … and accomplish a reunification of the family."

ESSB 5599 adds to this framework by creating a notification pathway that is specific to youth "seeking or receiving protected health care services," including "gender-affirming treatment" and "reproductive health care services." Under the existing framework set forth in Wash. Rev. Code § 13.32A.082, licensed shelters that took in such children were obligated to notify their parents so long as doing so would not "subject the minor to abuse or neglect." ESSB 5599 modifies this framework by providing that the fact of a child's "seeking or receiving protected health care services" creates an additional instance in which the shelter's obligation to notify the child's parents is voided. In these situations, as when the shelter fears potential abuse or neglect by the child's parents, the shelter may again forego contacting the child's parents and contact DCYF instead.

As in a case involving potential abuse or neglect, a licensed shelter's report to DCYF will again trigger DCYF's good-faith obligation "to notify the parent that a report has been received and offer services to the youth and the family designed to resolve the conflict … and accomplish a reunification of the family." ESSB 5599 further specifies that, if a licensed shelter notifies DCYF that it has taken in a minor seeking or receiving "protected health care services," DCYF must specifically offer two types of services. First, DCYF must "[o]ffer to make referrals on behalf of the minor for appropriate behavioral health services." Second, DCYF must "[o]ffer services designed to resolve the conflict and accomplish a reunification of the family." …

Enacted during the same session as ESSB 5599, SHB 1406 implements two additional revisions to the framework set forth in Wash. Rev. Code § 13.32A.082. First, it creates additional rules concerning DCYF's good-faith obligation to notify a child's parents and offer services after receiving a report of a runaway child. Specifically, in addition to "notify[ing] the parent that a report has been received," DCYF must offer "family reconciliation services," which are "services … designed to assess and stabilize the family with the goal of resolving crisis and building supports, skills, and connection to community networks and resources." DCYF must offer these services "as soon as possible, but no later than three days, excluding weekends and holidays, following the receipt of a report."

Second, SHB 1406 expressly recognizes a pathway for qualifying minors to stay in a licensed shelter for up to 90 days without parental permission. This pathway is only available in two situations: (1) if the shelter "is unable to make contact with a parent despite their notification efforts" to the parent or DCYF, or (2) if the shelter "makes contact with a parent, but the parent does not request that the child return home." In either scenario, the shelter must re-contact DCYF, which again must offer reconciliation services to the family.

The plaintiffs are represented by Gene Schaerr, Ed Trent, Hannah Smith, and James Phillips of Schaerr | Jaffe LLP, the firm with which I'm a part-part-part-time academic affiliate; but I have not been involved in this case.