Transition Treatment: Do Parents Have Any Rights to Protect Their Children?

This guest post is from Elizabeth McNally, Regent 3L & Family Law student:

Tennessee along with twenty-two other states has banned transition treatment for minors. Tennessee Code Annotated § 68-33-101 bans:

 

medical procedures from being administered to or performed on minors when the purpose of the medical procedure is to:

 

(1) Enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or

 

(2)            Treat purported discomfort or distress from a discordance between the minor’s sex and asserted identity.

 

Tennessee listed its reasons for enacting this ban, such as: the risks, irreversibly sterility, having increased risk of disease and illness, physical and emotional harm, or suffering from adverse and sometimes fatal psychological consequences; lack of maturity of minors in making these decisions; regret expressed by some of those whom have undergone these procedures; “protecting the integrity of the medical profession”; and preventing “harmful, unethical, immoral, experimental or unsupported” treatments.

          Society is currently debating whether states should be allowed to ban these treatments. While they debate this ban and a state’s authority to do so, they are much less likely to debate other bans that apply to minors. For example, some states have bans regarding tattooing minors or child vehicle restraints. In Prince v. Massachusetts, the Supreme Court even upheld a ban on child employment. In Parham v. J.R., it expressed the key reasoning behind restrictions on minors: “[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions.”

          Recently, Tennessee’s ban was challenged alongside Kentucky’s ban in L.W. by and through Williams v. Skrmetti. Judge Sutton carefully laid out why these bans are constitutional. Judge Sutton laid out the history of these treatments, communicating their relative newness. He also encouraged federal judges to be reluctant in taking this issue out of public debate and into their own hands, arguing that the people had not agreed to this. In his discussion of the bans, he drew a distinction based on whether a state was requiring or banning medical treatment. His analysis was based on many of the key family law cases concerning parental rights. The court held that “[p]arental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children”; therefore, their due process rights are not violated. Additionally, it held that the law regulates based on age; therefore, it is not an equal protection violation.

          These state bans are constitutional, and this is an issue to be left to the states. Federal judges should heed Judge Sutton’s encouragement and leave this issue to the people.