“The child is not the mere creature of the state” redux

Almost a century ago, in 1925’s Pierce v. Society of Sisters, a dispute from Oregon, the Supreme Court upheld the rights of non-public schools to operate and of parents to have them educated where they chose. In often quoted language, the Court reasoned that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Recently, however, lower courts have stood Pierce on its ear over the status of minors, living at home, who identify as transgender. This has taken place amid a large increase in the numbers of “trans youth” and has increasingly put parental rights at grave risk. For example, Christian parents in Montana and Indiana lost custody of their minor children in recent weeks because their beliefs prevented them from accepting so-called “transitioning”. In non-religion-based disagreements, fathers in New York and California lost custody of their now eight and five-year-old sons, respectively, for refusing to consent to allowing their ex-wives to “transition” their children or to affirm their “transgender identity”.

In light of the significant issues that such disputes present, this column will first review the facts and litigation in the Indiana case because the parents appealed to the Supreme Court to clarify their rights. Then I will comment on parental rights to direct the upbringing of their minor children who identify as transgender.

M.C. and J.C. v. Indiana Department of Child Services began in 2019 when the then sixteen-year-old son of Catholic parents, identified as A.C., left them a note telling them that he identified as female. The courts identified the parents, Mary and Jeremy Cox, as M.C. and J.C. A.C.’s announcement clashed with his parent’s religious belief that “that God creates each person as immutably male or female and that, based on those beliefs and scientific evidence, raising their children according to their biological sex is best for them.”

Consequently, the Coxes sought therapeutic counseling for A.C.’s gender dysphoria and eating disorder.

After state officials received allegations from unnamed sources that A.C.’s “Mother was verbally and emotionally abusing then-sixteen-year-old Child by using rude and demeaning language toward Child regarding Child’s transgender identity,” endangering his physical and mental condition, a trial court intervened. The court declared that although the parents were fit, A.C. was a “Child in Need of Supervision” who had to be removed from the family home. The judge placed A.C. in a setting that affirmed his gender identity, because of the unfounded belief that the parents could not provide a safe home, ordering them not to discuss A.C.’s transgender identity during their supervised visits and to refer to him by his preferred pronouns. Although A.C. later admitted that the accusations were untrue, the appellate court repeated them in denying the Cox’s request to regain custody of their child. The Supreme Court of Indiana chose not to intervene.

The brief of the Coxes’ attorney described the issues before the United States Supreme Court as:

(1) Whether a prior restraint barring a religious parent’s speech about the topic of sex and gender with their child while allowing and even requiring speech on the same topic from a different viewpoint violates the free speech or free exercise clauses of the First Amendment; and (2) whether a trial court’s order removing a child from fit parents without a particularized finding of neglect or abuse violates their right to the care, custody, and control of their child under the 14th Amendment.

In other words, the parents seek clarification over whether state officials violated their First Amendment rights to freedom of religion and speech by preventing them from speaking about their beliefs regarding their minor child’s sexuality. The parents are also questioning whether these officials transgressed the rights of which the Pierce Court wrote so eloquently.

Among the briefs supporting the Coxes is one filed on behalf of Abigail Martinez, a mother in California whose nineteen-year-old daughter committed suicide after public officials removed her from her home, granting her only one-hour visitations. Additionally, officials subjected the young woman to gender-transition treatments without maternal consent. In light of her tragic experience, Ms. Martinez’s brief urges the Supreme Court to accept M.C. and J.C. “to consider the consequences of its decision for the family of M.C. and J.C., especially their child A.C., and for families around the country who face similar situations.”

A possible issue before the Supreme Court is whether or not M.C. and J.C. is moot because A.C. is now over twenty-one and presumably no longer in parental custody. Even though A.C. is now emancipated, the Justices should accept M.C. and J.C. because it presents a timely dispute on an important issue that is “capable of repetition yet evading review” given the lack of clarity over parental rights in similar litigation.

M.C. and J.C. raises a question going to the very heart of what it means for parents who seek to live up to their roles by directing the upbringing of their minor children living at home. Specifically, M.C. and J.C. is important because almost a century after the Pierce Court recognized what has been the role of parents since the beginning of time, some jurists and states seek to override parental rights by allowing minors to make unilateral decisions for which they are not emotionally prepared—and, as evidenced by the case of Ms. Martinez’s daughter, can result in tragic consequences.

Evidence in a recent report of the American College of Pediatricians, summarizing dozens of studies, suggests that gender transition procedures for minors do not improve their mental health. As such, it is unclear why educational and other public officials, as well as medical and psychological professionals, rush to assist the growing numbers of students seeking to “surgical and hormonal interventions”.

Further, why are some courts and public officials so hasty in removing minors from their homes because of disagreements over such procedures without parental consent? After all, students typically cannot accept so much as an aspirin from school nurses without parental approval, let alone get tattoos, vote, or purchase alcohol or cigarettes. If minors are fully intent on “transitioning”, why not just wait until they are older, when they are (hopefully) more mature, and living independently? So that after receiving adequate psychological and medical advice, they can make more informed decisions to help them understand the lifelong ramifications of their actions?

Leaving M.C. and J.C. in place would have a chilling effect on long-standing precedent by egregiously undermining parental rights, especially for people of faith. Should other courts follow M.C. and J.C., public officials could act with impunity, usurping parents’ fundamental human and constitutional rights to direct the upbringing of their minor children for raising them in manners consistent with their sincerely held religious beliefs and best judgments. Hopefully, the Supreme Court will consider the incalculable harm M.C. and J.C. will likely have on untold numbers of parents, students, and their families by reversing the earlier judgments, reaffirming parental rights, thereby restoring some sense to the judiciary. Because, after all, “the child is not the mere creature of the state.”