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Abstract

This Article examines the rhetorical structures courts and advocates deploy in two distinct lines of cases adjudicating parental rights claims affecting transgender youth: cases challenging state bans on gender-affirming care, and cases challenging school policies supportive of transgender students. Although the legal basis for the parental rights claims in each set of cases is the same—substantive due process rights under the Fourteenth Amendment—the alignment of parental interests with those of their children diverges between the two sets. In the gender-affirming care cases, parents act in concert with their children’s expressed interests; in the school policy cases, parents seek to override them.

Despite this difference, the Article demonstrates that courts and advocates in both sets of cases deploy similar rhetorical motifs of freedom and constraint, and they adjust the characterization of the asserted parental rights to fit those motifs. Courts that reject parental rights claims valorize the freedom of the legislature or school district to act and narrow the asserted right; courts that vindicate parental rights claims cast the government actor as an agent of constraint and broaden the asserted right. These rhetorical structures limit the capacity of courts to think more expansively about the parent-child relationship.  They also place the two lines of cases on a doctrinal collision course, a tension already visible in the Supreme Court's recent decisions in U.S. v. Skrmetti, Mahmoud v. Taylor, and Mirabelli v. Bonta. The Article further argues that the alignment between parental and child interests offers an underutilized analytical framework that judges could deploy to help resolve this tension and to better promote the dignity and well-being of transgender youth. 

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