How gender affirming care ban could undermine parent-child relationships | Opinion

David Fowler
·4 min read
118

Editor's note: The Tennessean has been covering the concern, controversy and legislation surrounding gender affirming care from the reaction of elected officials to the pushback concerning from advocates of transgender youth. This issue has spurred debate across the community. You can link to other views below. Two pillars of The Tennessean’s opinion and engagement mission is to welcome diverse viewpoints and amplify underrepresented views.

When a former state senator who sponsored amendments to the state constitution removing any right to abortion and defining marriage as one man and one woman agrees with the ACLU’s attorney on a key constitutional issue, heads in conservative and liberal camps should start spinning.

But that is the case with a provision in Senate Bill 1/House Bill 1 dealing with minors and medical treatments touching on gender identity.

I do not agree with the ACLU’s conception of gender and its relationship to biological sex. But when its attorney recently argued in committee that this bill touches on a constitutionally protected zone of parental authority, I had to agree.

For over 100 years, the United States Supreme Court has extended a measure of constitutional protection to the parent-child relationship. Parents, the Court has said, have a certain sphere of authority in which to carry out the duties owed their children without the government second-guessing them at every turn.

Hear more Tennessee Voices: Get the weekly opinion newsletter for insightful and thought provoking columns.

Why the bill is flawed

In 1925, in Pierce v Society of Sisters, the Supreme Court rightly said, “The child is not the mere creature of the state.”

When the ACLU’s attorney also asserted that parents have a right to make medical decisions they think best for their children, I had to agree, at least in principle.

That’s why my antennae for preserving the parent-child relationship went up when I read in the bill that the legislature has a “compelling and substantial interest” in “protecting” children from “emotional harm” and in “promoting the dignity” of children. What does that mean?

Wisely, Rep. Tom Leatherwood, R- Arlington, asked the ACLU’s attorney what could be changed so that the bill would not unconstitutionally intrude on the parent-child relationship. The answer was, “Nothing.”

This, however, is where my agreement with the ACLU ends. I think a state can distinguish between a parent deciding to have their daughter’s cancerous breast removed and deciding to initiate procedures that would impede the natural growth of healthy and properly functioning her body and organs.

But the legislature has not put in the bill any legal and constitutional basis for deciding what constitutes emotional and dignity harms. Absent that, I don’t know — nor do you — where the state’s interest in second-guessing a parent’s medical decisions begins and a parent’s rights end.

Sign up for Latino Tennessee Voices newsletter:Read compelling stories for and with the Latino community in Tennessee. 

Sign up for Black Tennessee Voices newsletter:Read compelling columns by Black writers from across Tennessee. 

Lawmakers need to add clarity

Conservatives need to answer this question: If someday the American Psychiatric Association say taking children to a Trump-type rally is emotionally harmful, is that enough to justify a state law forbidding parents to bring their children to those rallies?

David Fowler
David Fowler

I have been asking this question to no avail, “What is the legal and constitutional standard by which the legislature thinks it can inject itself in the parent-child relationship?”

Those who say that’s a silly question in this context — how could these treatments ever be “right”? — do not understand how federal judges think. They don’t just judge the end the legislature seeks to accomplish — preventing gender care treatments — but the means why which it seeks to attain that end.

Right ends are never allowed to justify unconstitutional means, and the failure of the legislature to ground emotional and dignity harms in any law, let alone constitutional law, may result in the law being held unconstitutional or, worse yet, a federal judge defining those terms in ways the average person might never have imagined.

Don’t think a redefinition can happen? Then you must have forgotten the majority of the Supreme Court said “dignity” required the states to redefine marriage.

I have offered the sponsors a clarifying amendment, but they believe clarity is not needed. The federal courts will soon decide if clarity was needed.

David Fowler is an attorney who served in the Tennessee Senate 12 years and currently directs the Family Action Council of Tennessee.

This article originally appeared on Nashville Tennessean: Gender affirming care ban could undermine parent-child relationships