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Thinking about this tweet from @SamBarber1910, an exchange with @TransCriticalMo a few days ago about affirmation-only therapy laws and some research I’ve been doing, I want to add some thoughts that are important to the overall discussion.
Procreation is a fundamental right in the U.S. The state may interfere with this right only if there is a compelling state interest in doing so and the means chosen to effectuate that interest are the least restrictive available.
The first Supreme Court case establishing procreation as a fundamental right is Skinner v. Oklahoma in 1942. Skinner struck down a forced sterilization statute and, in doing so, stated:
“The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects … There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”
Laws that compel affirmation-only therapy for children presenting as transgender are an exercise of the power to sterilize. Proponents of affirmation therapy do not dispute that hormone treatment will leave children sterile.
To justify affirmation-only laws, states must show they serve a compelling governmental interest (meaning the law is necessary or essential) and that there is no other, less restrictive means of effectuating that interest.
Let’s be clear about the “interest” we’re talking about. It is not the interest in the mental well-being of children that is at issue. It is the state’s interest in prohibiting therapeutic alternatives.
It's doubtful a state could meet this burden, which is by design a difficult one. There is no conclusive data demonstrating that affirmation-only ought to be the sole option or even that alternatives are, in fact, harmful.
Such laws also tend to coattail on conversion therapy and often gender identity seems to be tacked on with little in the way supportive legislative findings specific to gender identity, suggesting the state didn’t think gender identity was the important point of the law.
States would also be confronted with the language from Skinner, quoted above, which was a refutation of the disgraced Buck v. Bell decision wherein Justice Holmes opined that “three generations of imbeciles are enough.”
What value is all this to the children seeking care? Not much. The child who understands enough to challenge the affirmation-only model isn’t likely to be subject to it upon meeting with the therapist.
However, the child that is harmed by treatment given through a state-affiliated clinic, like those at state universities, might have a basis to sue for a violation of civil rights.
An unwilling parent should also be able to raise the issue of the child’s right to procreation on the child’s behalf in mounting a challenge to an affirmation-only law.
The parent could also argue that affirmation-only laws intrude on parents’ right to direct the care and welfare of their children, a right long honored in the law.
(A challenge by parents assumes they can get past the “live daughter/dead son” scare tactic, of course.)
As a final question, what happens when the parental rights collide with the child’s right to procreation? Do parents have the right to consent to hormone therapy that will render their children sterile?
The answer is no, I think, for two reasons. One is that the Supreme Court has struck down laws requiring parental and spousal consent in abortion cases. I’m not conversant on the topic but the point is that a citizen can’t be given a Constitutional veto over another.
The second reason comes from cases involving parents of adolescent and adult children, usually female, with developmental disabilities. In the past, sterilization was sought for the children who matured physically but not intellectually.
These cases were largely motivated by concerns about whether the individual understood the connection between sex and pregnancy, the ability to care for and rear children, whether the individual was susceptible to sexual abuse, among other issues.
The majority view seems to be that the courts sought to protect the right to procreate wherever possible precisely because it is a fundamental right. Parents’ right to make the decision to sterilize gave way and protective procedures were implemented.
I say “seems to be” because I have more research to do, but it is clear that despite the similarities, gender dysphoric children have none of the protections put in place in the past to protect the same fundamental right of the developmentally disabled.
As I said at the outset, I want to add important points to the discussion. I hope I’ve also shown that we have a lot of work to do and that, yes, we are in fact on the right side of history.
