The Double-Edged Rhetoric of Parental Rights: Conflicts between Freedom and Control in Cases Concerning Transgender Youth

Northwestern Journal of Law & Social Policy Northwestern Journal of Law & Social Policy

The Double-Edged Rhetoric of Parental Rights: Conflicts between The Double-Edged Rhetoric of Parental Rights: Conflicts between

Freedom and Control in Cases Concerning Transgender Youth Freedom and Control in Cases Concerning Transgender Youth

The Double-Edged Rhetoric of Parental Rights: Conflicts between Freedom and Control in Cases Concerning Transgender Youth

Susan Etta Keller*

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.

Keywords: transgender youth, parental rights, gender-affirming care, gender identity, education law, parental rights rhetoric, transgender rights rhetoric, choice jurisprudence, school choice.

Table of Contents

INTRODUCTION ................................................................................................................ 290 I. CASES ADDRESSING GENDER-AFFIRMING CARE ..................................................... 294

A. Decisions Upholding the Bans: Legislative Freedom and Parental

Constraint.................................................................................................... 296 B. Narrowing Asserted Right ........................................................................... 298 C. Opinions that Would Strike Down the Bans................................................ 299 D. Broadening Asserted Right ......................................................................... 300 II. SCHOOL POLICY CASES............................................................................................ 301 A. Decisions Upholding School Policies ......................................................... 302 B. Decisions Striking Down School Policies ................................................... 304 III. ALIGNMENT OF INTERESTS ...................................................................................... 307 CONCLUSION.................................................................................................................... 315

Transgender youth face, at this moment in history, substantial legal and cultural obstacles to their efforts to grow and thrive. The years since 2020 have been marked by a wave of legislation in many states aimed at limiting their opportunities to receive genderaffirming care, play in school sports programs, and use bathrooms aligned with their gender identity, among other restrictions.1 While these efforts were initially thwarted by multiple federal court decisions,2 more recent decisions, rendered at a time when public opinion on transgender rights has been shifting in response to a spate of campaign-related negative advertising, have proven less favorable. The most recent culmination of this trend has seen the efforts of the second Trump administration, beginning in January 2025, to further these legislative aims through a series of Executive Orders targeting transgender individuals,3 and the June 2025 decision by the U.S. Supreme Court in U.S. v. Skrmetti denying heightened scrutiny under the Equal Protection clause for legislation banning genderaffirming care.4

There are, however, two important areas of law affecting transgender youth that remain unresolved by recent developments at the Supreme Court, even as the Court provides significant indications about its likely views. Parental rights figure prominently, but in conflicting ways, in both areas. First, parents supporting their children’s access to gender-affirming care have invoked their own rights to direct their children’s medical care

in cases challenging statutes banning such care.5 Because this substantive due process claim in the original case was not included in the grant of certiorari, U.S. v. Skrmetti did not address it.6 Second, parents in other states have sought to challenge school policies supportive of transgender students by also invoking parental rights based in substantive due process. In this second set of cases, parents oppose policies that require educators to respect transgender students’ use of names, pronouns and bathrooms that conform to their gender identity, and to limit parent access to information about those choices. Although the recent Supreme Court case Mahmoud v. Taylor upheld the religious rights of parents in a public school context, it did not address parents’ substantive due process rights. However, even more recently, in Mirabelli v. Bonta, an emergency order vacating the 9th Circuit’s stay of a district court’s permanent injunction, the Supreme Court majority signaled its views about a state law authorizing the types of school policies at the heart of the second set of cases, but did not provide a conclusive judgment.7 Unpacking the conflicting rhetoric of these two sets of cases takes on greater urgency in the wake of these decisions that say much about the sympathies of the justices but offer no definitive rulings.

The legal basis for the parental rights claims in each set of cases is the same, but the alignments of interest differ. In the gender-affirming care cases, the parents are aligned with their transgender offspring and seek to remove constraints on care. In the school policy cases, the schools are aligned with the identity claims of the students, while the parents oppose the actions the schools take to support the students’ identity. I ultimately argue that the alignment between the interests of parents and their children should be a more prominent focus of analysis in court decisions adjudicating parental rights, guiding courts to support parental rights more strongly when this alignment occurs.

The legal question in each set of cases is whether the interest the parents assert is a fundamental right protected by substantive due process. Over time, the Supreme Court has affirmed that parental rights, or at least some version of parental rights, fall into the category of unenumerated fundamental rights that are protected by substantive due process, requiring strict scrutiny. Traditionally, this right was described broadly. For example, in Pierce v. Society of Sisters, the Court found that a statute requiring a student to attend public rather than private school “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of their children.”8 Similarly, the Court in Wisconsin v. Yoder endorsed parents’ rights to “guide the religious future and education of their children,”9 while in Troxel v. Granville, the plurality referred to “the fundamental right of parents to make childrearing decisions . . . .”10 Although not addressing substantive due process specifically, the Court in Parham v. J.R. also endorsed a strong version of the rights of parents to direct the medical care of their children, writing, “[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.”11 However, other cases have suggested that parental rights in both the medical

context and education context have limits.12 The cases addressing parental rights in the context of gender-affirming care and gender-supportive school policies explore and evaluate these limits, displaying substantial disagreement, within each set of cases, about the ways in which these rights might be limited, and about how narrowly or broadly to characterize the right claimed.

In presenting and adjudicating claims in these two different sets of cases, both courts and litigants invoke the rhetoric of freedom and control. However, the ways in which each side of each conflict deploys this rhetoric varies. In the gender-affirming care cases, courts upholding the bans against substantive due process challenges focus on the freedom of the state legislatures to assess the values and risks of medical treatments they describe as novel or experimental, and cast the parent litigants as seeking to constrain this deliberative process. By contrast, courts and litigants that argue in favor of striking the bans on the basis of the parents’ substantive due process rights depict the parents as those whose freedom to choose what is best for their children is thwarted by the constraints of the legislative action. In the school policy cases, those upholding the policies against parental challenge justify them as promoting the freedom of school districts to develop policies to navigate important issues of identity. In opposition, litigators and judges describe the policies they oppose as a means of constraint, forced upon students and usurping parental roles. The parties in both disputes disagree not about the values of freedom versus constraint in the abstract, but rather about whose freedom matters and who is doing the constraining.

At the same time, how courts characterize the due process right claimed by the parents matters to the doctrinal outcome in both sets of cases. Following an approach that Professor Reva Siegel calls the “Levels-of-Generality Game,”13 courts that turn away a substantive due process claim characterize it in very specific terms, e.g., the right to give one’s child puberty blockers, and then point out that such a right is not “deeply rooted” in our nation’s history as is required under Supreme Court precedent. On the other hand, courts that acknowledge a substantive due process claim characterize the claimed right broadly as the right to direct the care and upbringing of the claimants’ children.

As in many other areas of law, judges writing opinions in these cases often justify their outcomes by relying on rhetorical motifs rather than grappling with the more pressing human issues at hand. In an earlier article, I argued that rhetorical motifs judges use to justify their outcomes function much like the traditional elements used by oral epic poets, partaking of common themes with which the audience is culturally familiar, and creating meaning by deploying them in different combinations.14 In this way, the availability of these motifs can limit the ways in which judges are able to review and address the matters before them. As I wrote in that earlier work: “If a choice cannot be explained, it is hard to imagine it in the first place.”15 And while these motifs may limit how judges think about

the relevant disputes, they are not outcome determinative, because of the availability of alternative motifs that can be combined and recombined. Yet they limit judges’ creative capacity to think outside the structures within which they deploy their arguments. What Professor Gregory Nagy writes about ancient Greek epic poetry applies similarly to judges in our legal tradition: “[T]here is no question, then, about the poet’s freedom to say accurately what he means. What he means, however, is strictly regulated by tradition.”16 This article will examine the rhetorical motifs courts use to justify their outcomes in both sets of cases, illustrating the similarity of motifs used by courts and advocates in each set, even as the subject matter of the cases have diverging ideological valences. In Part I, I examine the rhetoric used in opinions both upholding and rejecting bans on genderaffirming care on the basis of parents’ substantive due process rights. In Part II, I examine the very similar rhetoric used in judicial opinions and briefs in cases adjudicating the claims of parents opposing school policies that are supportive of transgender students. In Part III, I suggest that these two sets of cases appear to be on a doctrinal collision course. If parental rights are to be viewed as narrowly as courts upholding gender affirming care bans would have it, then the logic of those decisions would suggest that the parental objections to school policies supportive of transgender rights should be turned away for the same reason. Nonetheless, the Supreme Court majority has proven sympathetic to bans on genderaffirming care, while also displaying zeal for addressing the parental rights claims of parents opposing gender supportive school policies.17 So far, neither substantive claim of parental rights has been addressed by the Court head on. While the Skrmetti decision focused only on the Equal Protection claims and not the substantive due process claims, the Court has not yet granted certiorari to rule on the merits with respect to the school policy cases.18 Especially in light of the litigation challenging the recent Executive Order threatening gender affirming care nationwide,19 and the strong expressions of sympathy for the parents in the Supreme Court’s emergency order in Mirabelli, it may only be a matter of time before both types of parental rights claims are fully addressed by the Supreme Court.

By relying on the motifs of freedom and constraint, and by manipulating the characterization of the underlying right claimed, few of the opinions in these sets of cases examine the parent-child relationship as a basis for decision-making or focus on human dignity. The similarity of the rhetoric deployed in these cases might suggest that one set of cases should serve as precedent for the other; that parental rights recognized in one area, like gender-affirming care, might require recognizing parental rights in the school policy cases. Arguments furthering this type of consistency among outcomes would appear to be

double-edged swords for both those promoting the interests of transgender youth, and those seeking to limit the rights of transgender youth. I maintain, however, that although the rhetorical motifs at play in these cases structure and limit legal thought, they do not determine outcomes. Instead, the courts could re-orient themselves doctrinally by taking seriously the parent-child relationship. I suggest that the alignment of interests between parent and child should matter, and might provide a way out of the impending rhetorical collision. Considering this alignment may allow courts to conclude that parental rights are strongest when they are aligned with their children’s expressed interests, and correspondingly weaker when they are not.

A large number of states have enacted gender-affirming care bans.20 These statutes typically prohibit doctors from engaging in a wide range of treatment for young people suffering from gender dysphoria, defined as the misalignment of one’s gender identity with the gender assigned at birth. Although the inflamed public rhetoric from those opposing gender-affirming care often focuses on surgery, surgery is in fact rarely prescribed for minors.21 Rather, carefully screened patients receive a standard treatment protocol that typically includes the administration of puberty blockers to prevent development of secondary sex characteristics associated with the gender the young person is not aligned with, and sex hormones consistent with gender identity later on. Under widely accepted medical protocols, these are the appropriate treatments when an individual has a demonstrated, long lasting and intense experience of gender dysphoria,22 and they are prohibited under the state statutes at issue in these cases.

These statutes are part of a larger movement aimed at limiting the rights of transgender individuals. States across the nation have passed legislation addressing sports participation, use of bathrooms, and pronoun use, as well as access to appropriate care. In an earlier article, I analyzed the language of multiple statutes that are part of this backlash, maintaining that seemingly descriptive language in those documents has performative effects, meaning that the language creates change in the world.23 Legislators use language to create counterfactual social narratives and serve to entrench belief in a strict gender binary so that those who fall outside of it are rendered abject and unrecognized. Examples of descriptive language with performative effects within the statutes banning gender affirming care include the titles of the statutes themselves, which cast the children as victims of their parents and doctors24 when in fact they are aligned; the use of the term “biological sex” to designate the gender assigned at birth, with definitions of that term that

reinforce a binary view of gender;25 and false and misleading characterizations of scientific studies and medical practice within the legislative findings that suggest this widely accepted protocol is novel, experimental, and potentially dangerous.26

These speech acts have cumulative effects beyond the page: Surveys demonstrate that the public is increasingly reluctant to embrace the rights of transgender individuals,27 and politicians use anti-transgender rhetoric in their advertising and social media to exploit this growing sentiment.28 Further, federal courts addressing challenges to these and other backlash statutes are shifting their approach. Following Bostock,29 most federal courts initially applied that case’s holding with respect to Title VII more broadly to both Equal Protection analysis and Title IX, holding that school policies limiting the bathroom choices of transgender students and statutes restricting their ability to participate in gendersegregated sports were sex discrimination under both doctrines.30 Similarly, early cases addressing the bans on gender-affirming care also treated the question as one of sex discrimination under the Equal Protection clause, and further found that such statutes violated the substantive due process rights of parents to direct their children’s medical care.31 As newer cases have reached other federal circuit courts of appeal, the momentum has shifted.

Recently, some courts have taken a different approach, accepting at face value the misleading legislative findings of the statutes under review, and turning away both the equal protection and substantive due process challenges. The Skrmetti decision by the Sixth Circuit Court of Appeals is emblematic of this shift, but not alone.32 Following that decision, the United States filed a petition for certiorari as intervenor on only the Equal Protection Clause issue. Because the Supreme Court granted certiorari on that issue only, the issue of parents’ substantive due process rights was not addressed by the Supreme Court’s Skrmetti decision and it remains a basis for challenging these statutes in other circuits.33 For that reason, the rhetoric of both the majority and dissenting opinions in the 6th Circuit decision on the topic of parents’ rights is likely to influence the rhetoric and outcomes of subsequent decisions adjudicating this basis for challenging bans on genderaffirming care.

A. Decisions Upholding the Bans: Legislative Freedom and Parental Constraint

The Sixth Circuit Skrmetti majority, in rejecting the challenge to the state statutes prohibiting gender-affirming care, illustrates one set of rhetorical motifs used in the genderaffirming care cases. The majority subordinates the interests of the parents in determining the medical care their children receive to the interests of the legislature in regulating that medical care. While the Skrmetti majority is interested in the value of freedom, it is the legislature’s freedom to act that most concerns these judges. The Skrmetti majority paints the legislature as the body whose freedom is constrained by the claims of parental control, valorizing the “ebbs and flows of democracy” it sees as being exemplified by the Tennessee and Kentucky legislators’ approach to this topic. The court wrote, “[l]ife-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamenable Constitution to occupy the field.”34 The majority cites the “recent proliferation of legislative activity” by these and other states to restrict the availability of gender-affirming care as exemplifying the “thoughtful debates” among states that need to be nurtured rather than thwarted by substantive due process litigation.35 The opinion suggests that this legislative freedom aligns with benefits to children, writing, “[a]nd all of this in an arena—the care of our children—where sound medical policies are indispensable and most in need of responsiveness to the democratic process.”36 Despite the large amounts of support for this proliferated legislation by well-bankrolled right-wing think tanks,37 the legislative process is presented as fragile and in need of protection from those who would trample upon it.

By contrast, the constraint upon this tender and careful process, in the view of the majority, comes from the claims made by parents seeking medical care they see as beneficial for their children. For example, the court states that “[f]ailure to allow these laws to go into effect” would “grind” the legislative “gears to a halt.”38 Recognition of the parents’ claims to seek medical care for their children would “prohibit[] citizens and legislatures from offering their perspectives on high-stakes medical policies,”39 almost as if the claim itself is a constraint upon free speech rights of other citizens and their representatives. Elsewhere, these claims are depicted as “handcuff[ing]” change and “best practices,”40 or allowing medical experts who weighed in on the appropriateness of the treatment sought as trying to “overrule the wishes of elected representatives and their constituents.”41

Parents are portrayed as repressive authorities who might “veto” the free exercises of democracy, and “take charge” of regulatory areas that should otherwise be free.42 The court even scolds the litigants for asserting their parental rights by stating, “becoming a parent does not create a right to reject democratically enacted laws.”43 The entire tenor of the opinion is that the very claim of a constitutional right—one, it should be noted, that itself asserts a freedom to choose among different medical options—is an act of authoritarian dismantling of the democratic process.

In order to facilitate a claim that the legislature is entitled to this freedom to thoughtfully navigate through regulation, the court takes pains to portray the scientific evidence in favor of and against the safety and effectiveness of gender-affirming care as reasonably balanced. The court describes the protocols for gender-affirming care as “new,” and “innovative,” or “experimental.” In fact, as the district court in Eknes-Tucker determined, “the uncontradicted record evidence is that at least twenty-two major medical associations in the United States endorse transitioning medications as well-established, evidence-based treatments for gender dysphoria in minors.”44 Nevertheless, accepting the state statute’s legislative findings at face value and then portraying the medical community’s counter as simply an alternative point of view enables the majority to treat the legislature as the location of reasonable debate. If the legislature is reasonable, then its freedom is what matters. For example, the court states that the “democratic process” is the “conventional place for dealing with new norms, new drugs, and new public health concerns.”45 The court is not saying that it supports these statutes. But by denigrating the protocols as new and by promoting the contentions behind the statutes to equal status with those of the medical community, the court supports its claim that anything other than legislative freedom is an unwarranted constraint.

There are many instances in which the court suggests these choices are equally weighted, in order to preserve legislative freedom to decide between them. For instance, the court says that “compassion for the child points in both directions,”46 that there are “material risks in either direction” of allowing or disallowing such care,47 and that the “relevant medical and regulatory authorities are not of one mind about the costbenefit tradeoffs of this care.”48 Having established this supposed balance, the court then suggests it is entirely unreasonable “to permit legislatures on one side of the debate to have their say” (by allowing gender-affirming care) while “silencing legislatures on the other side of the debate.”49 Indeed, the supposed balance of different perspectives ultimately supports the majority’s conclusion that they should allow a thousand legislative flowers to bloom:

States may reasonably exercise caution in these circumstances, with some States focusing on the near-term risk of increasing the symptoms of gender

dysphoria and other States focusing on the irreversible risks of providing such care to a minor. The Due Process Clause does not resolve this regulatory debate.50

This language elevates the unsupported assertions in the legislative findings about risk and novelty to sit as an equal side in a medical debate. This elevation enables the court to promote legislative regulation of available medical care as a form of freedom, with the claims of parents seeking to access medical care for their children as a form of constraint. Other circuit court decisions that come out the same way as Skrmetti illustrate similar motifs. Like the Skrmetti majority, they validate skepticism about the medical procedures under review to suggest that there are two equal sides to the question entertained by the legislature. For example, the Seventh Circuit in K.C. states that the states’ “power to regulate the practice of medicine . . . is strongest when the safety and effectiveness of the treatment is uncertain, as is true here.”51 Accepting the legislative findings at face value, the court describes the banned treatment as “novel and uncertain,”52 and as “new and heavily debated . . . with unknown risks.”53 Similarly, the Eleventh Circuit in Eknes-Tucker emphasizes the “strong disagreement between the parties over what is best for those children,” as a basis for treating the matter as a balance of competing viewpoints.54

In K.C., this supposedly even balance is then used, as in Skrmetti, to support a theme of legislative freedom threatened by the parents’ due process claims. The K.C. court characterizes the parents’ claim as one that demands that the question of regulating care for gender dysphoria be “withdraw[n] . . . from the people forever.”55 Citing Dobbs,56 the court suggests that the effort to overturn the regulation will “usurp authority that the Constitution entrusts to the people’s elected representatives.”57 Finally, given the two sides to the debate, the court imagines that giving in to the parents’ demands will “set one side of the debate into constitutional stone,”58 while undermining the freedom of those legislatures that disagree.

B. Narrowing Asserted Right

All three decisions rejecting the parental rights cases support that rejection by following Dobbs in narrowing the right asserted by the claimants so that it fails the test asserted there that the right is “deeply rooted in [our] history and tradition” and “essential to our Nation’s scheme of ordered liberty.”59 In a manner that Professor Reva Siegel describes as the “levels-of-generality-game,”60 the decisions describe the asserted claim at such a high degree of specificity that of course its content would be alien to citizens and

political actors of earlier centuries. While the parents assert that they are seeking recognition of a claim to direct the medical treatment of their children, decisions like the majority in K.C. instead define the asserted right in terms of the specific care being challenged:

Properly tailored, the question here is whether the Due Process Clause gives parents the right to access gender transition procedures for their children. SEA 480 is specifically limited to “gender transition procedures,” so any right encompassing all medical treatment is too broad.61

Similarly, the Eleventh Circuit in Eknes-Tucker defines the relevant claim even more narrowly, as “the right to give one’s children puberty blockers and cross-sex hormone treatment.”62

In so narrowly specifying the claim, at a level of absurdity presaged by Professor Siegel’s analysis, the outcome of the analysis is inevitable, if the test is to be whether that right is “deeply rooted” per Dobbs: “To the contrary, the gender transition procedures at the heart of appellees’ claimed right have no such long history. The first report of a minor transgender patient treated with puberty blockers was in the Netherlands in 1998.”63

The Skrmetti majority rejects the parents’ claim on a similar basis, acknowledging that the analysis turns on the level of generality employed to describe it.64 Indeed, the decision relies on this maneuver to chide the parents for daring to suggest their asserted right is broader, in keeping with the theme developed in the opinion that the parents’ claim operates as a form of constraint on legislative freedom:

The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support.65

This narrowing maneuver characterizes the parents’ claim as a novelty, in much the same way as the medical treatments under consideration were themselves mischaracterized as novelties. Both of these speech acts are what make it possible for the courts to elevate legislative freedom and dismiss the asserted parental rights as improper constraint.

C. Opinions That Would Strike Down the Bans

Those decisions or dissents that would strike down the bans on gender-affirming care as violating parents’ substantive due process rights provide a mirror image of the rhetoric found in the opinions on the other side. These opinions see parental freedom as the primary value, and cast the legislation as the constraint upon that freedom. To support those themes, these opinions emphasize the medical acceptability of the challenged treatment, and

propose a level of generality for characterizing the asserted right as expansive rather than limited.

In keeping with its theme of freedom, the dissent in Skrmetti, for example, focuses on “parental autonomy,”66 and suggests that the statutes take parents’ “decision-making reins” away from them.67 Here, it is the legislature that is acting as the constraint by “infringing,” “intruding,” and taking the “reins.” The dissent directly rebuts the majority’s valorization of states as “laboratories of democracy” by noting that “experimentation has no place” when a fundamental right is at stake.68 The district court in Brandt expresses similar dismay that the Act under consideration would thwart parents “acting in the best interest of their children” by “tak[ing] away the parents’ fundamental right” and “giv[ing] that right to the Arkansas Legislature.”69

Just as the Skrmetti majority and similar rulings centered their rhetoric around themes of freedom and constraint by suggesting there is a balance of scientific opinion on the efficacy of the treatments under review, the opinions here set up their themes by urging the opposite, namely that the weight of medical evidence lies with the protocols that the statutes would ban. For example, the Skrmetti dissent states:

The WPATH and the Endocrine Society guidelines constitute the prevailing standard of care for individuals with gender dysphoria. They are based on the same quality of evidence as other clinical-practice guidelines. And every professional association for medical and mental-health providers in the United States—including the American Medical Association, American Academy of Pediatrics, and the American Psychiatric Association—has endorsed the guidelines.70

In a similar manner, the district courts in Brandt, and Poe v. Labrador marshal considerable evidence that the weight of modern medical opinion in the United States favors the protocols that would be banned by the statute.71 By supporting the reasonableness of the medical care sought, these courts facilitate their themes that the parents’ freedom to access this medical care on behalf of their children is being thwarted by the legislature.

D. Broadening Asserted Right

At the same time, the opinions supporting the parents’ due process rights widen where their counterparts narrow. They characterize the parents’ rights at a level of generality that makes it easy to establish that right as “deeply rooted.” The Brandt court describes the right expansively, as a “right to seek medical care for their children”:

As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their

adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary.72

Similarly, the dissent in Skrmetti defines the claim as “a fundamental right to decide whether their children should (or should not) undergo a given treatment otherwise available to adults.”73 By negating the supposed balance of opinions advanced by the Skrmetti majority and other similar opinions, and increasing the level of generality at which the parents’ claim is characterized, those who agree with the Skrmetti dissent argue that freedom properly belongs to the parents, if it were not being thwarted by the operation of the legislative choices.

Both sides engage in a series of rhetorical maneuvers to enable them to cast the winning side as the proponent of freedom, and the opposite side as the constraining force. That they both use similar rhetorical strategies to advance their positions does not mean that an evaluator has to be neutral about the strength of the underlying factual bases for these claims. There is ample evidence that the current weight of medical authority favors the parents’ position.74 Elevating questionable studies to suggest that there is a balance of opinion, whether in legislative findings or in court opinions that rely on them, borders on mendacious. Similarly, the way the recent court decisions turn away the substantive due process claims reaches a point of absurdity, as each of those decisions narrows the question to encompass only very recent medical techniques. This rhetorical deployment suggests that there is no serious effort on the part of the courts upholding the bans to evaluate the claim; given modern advancements in medicine, few claims for parental control of a child’s medical care can survive this game. Is the right to artificial heart valves deeply rooted in history? Or gene therapy for genetic disorders?75

II.

A very similar set of rhetorical motifs are evident in the cases in which parents challenge school policies designed to support and validate the gender identity claims of transgender students. The majority of the challenged policies are for middle school or high school students, and have typical features that encourage school personnel, in response to student requests, to address students by their preferred names and pronouns, allow students to use bathrooms associated with their gender identity, and treat information about these requests as confidential. Some of these policies encourage school personnel to develop

“gender support plans” for students who request such support, addressing issues of identity and access at school.76 These plans encourage inclusion of supportive parents in their development, but contemplate excluding unsupportive parents in the interest of safety for the student.77 Finally, most plans have specific guidance for school personnel to keep confidential information about the student’s preferred pronouns and name even from parents, when the student has chosen not to include the parents in their decisions and discussions with the school about those matters.78 The parents most typically challenge these confidentiality provisions, sometimes referring to them as “Parental Exclusion Polic[ies].”79

The Supreme Court has denied petitions for certiorari from two circuit court decisions considering challenges to these types of school policies. In both cases, the circuit court upheld dismissal of the cases for lack of standing, because the parents challenging the policies could not show that their children were in any way seeking the protections contemplated by the policies.80 Yet, the Court more recently intervened through the emergency docket in a case challenging California’s state policy, which had been interpreted by the lower court to prevent school’s from sharing non-consenting students’ transgender status with their parents.81 The Ninth Circuit had stayed an injunction issued by the district court requiring schools to provide parents with this information, and requiring schools to follow the parents’, not the students’, preferences as to names and pronouns.82 In vacating this stay, the per curiam majority signaled its sympathy with the parents who had brought the claim, including as part of its analysis of the relevant factors for a stay the likelihood that the parents would succeed both with respect to a free exercise claim and with respect to their substantive due process claim.83 This intervention strongly suggests that it will not be long before the Supreme Court fully addresses this or a similar claim on the merits.

A. Decisions Upholding School Policies

When courts reject the initial substantive due process claims made by parents in school policy cases, they do so with motifs very similar to those deployed in the cases adjudicating parental rights in the context of gender-affirming care. Here, the courts characterize the parents’ claims as being a constraint upon the freedom of school districts to create an atmosphere that fosters acceptance for the gender identity claims of their students. In Foote, where the court rejected the parents’ claim, the court focuses on the freedom of the school to make its own curricular decisions, free of the parents’ interference:

Parents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school. As per our understanding of Supreme Court precedent, our pluralistic society assigns

those curricular and administrative decisions to the expertise of school officials, charged with the responsibility of educating children.84

Even in a case that was decided on the more technical ground of standing,85 the court in Eau Claire still included comments that emphasized the values of freedom for the school district to implement the plan that the parents challenged. In turning away the challenge on the basis of standing, the court celebrated that its decision would “afford the Eau Claire School district the opportunity to devise responses in each individual circumstance as it arises.”86 The court cast the parents as restricting that freedom by “seek[ing] to pull a federal court into a range of complex and often emotional challenges on matters of gender identity, where the right policy recipe is not yet clear . . . .”87 In this respect, the court takes an approach similar to that of Skrmetti and other cases addressing parental rights in the context of gender-affirming care. Just as those courts use a characterization of the science behind gender-affirming care as conflicted to justify providing legislators freedom to experiment, here the court uses a characterization of the issues around gender identity as complex to suggest that the school districts be provided freedom to find the right “policy recipe.” In a brief opposing certiorari in a similar dispute, the school district also makes a plea for freedom, suggesting that a counterweight to the interests of parents is “deferring to the reasoned judgments of educators on how to provide a safe and supportive learning environment.”88

Like the gender-affirming care cases that rejected the parents’ substantive due process claims, those school policy cases that reject the parents’ claims on the merits often engage in a similar maneuver to narrow the scope of the claim so that it may be more easily rejected. For example, the court in Lee characterizes the claimed right in a very narrow way in order to dismiss it:

Plaintiffs direct the Court to no authority demonstrating that the Fourteenth Amendment confers a constitutional right to receive notice about topics discussed in the District's curriculum, and particularly, at after-school, voluntary extracurricular clubs that they may find objectionable, or the right to excuse their children from those discussions.89

Other school policy cases that reach the merits also engage in Professor Siegel’s “levels-of-generality game,” relying on Dobbs to establish that the right must be “deeply rooted” and then defining the claimed right in such a way that it is a creature of the modern

era and thus fails the test.90 For example, the district court in Regino found that existing precedent would have to establish that “the state has an affirmative duty to inform parents of their child’s transgender identity” or that it “must obtain parental consent before referring to a transgender child by their preferred name and pronouns” in order to establish violation of a fundamental right.91 In its brief in opposition to certiorari, the school district involved in the John and Jane Parents case similarly argues that if an appellate court were to address the merits, the right claimed should be seen as the “right to be informed by public school personnel when their child’s ‘behavior . . . deviates from the prior instruction about the naming and gender of their child—and not [be] lied to about it by school personnel.’” 92 Having characterized it that narrowly, it is then easy to assert that this is not a fundamental right.93 That narrowing maneuver allows the courts to validate the school’s freedom to experiment without the constraint imposed by the parents.94

B. Decisions Striking Down School Policies

Courts that have accepted the argument that the parents’ substantive due process rights have been violated by school conduct supportive of gender identity employ rhetoric similar to that in cases similarly validating parental rights regarding gender-affirming care. In Tatel, the district court held that a noncurricular program in which a teacher provided instruction about gender identity to pre-kindergarten children without providing parents notice or the ability to opt out violated those parents’ rights. The court repeatedly emphasized the young age of the children involved as a crucial factor in the decision. While that case can be easily distinguished on that basis from decisions in which a school is supporting the identity claims of much older children, the deployment of rhetoric in Tatel is nonetheless instructive. Like the gender-affirming care cases that recognize a substantive due process right, there is no attempt in Tatel to narrow the scope of the right asserted. Rather, the court defines the right in expansive terms so that it can pass the appropriate test: “The parental right to custody, control, and nurture of their children is deeply rooted and implicit in the United States’ concept of ordered liberty.”95 And far from being a locus of freedom, the educational setting is one in which the students are “captive,” and where the instruction “showed intolerance and disrespect” for the beliefs and authority of the parents.96

A recent California decision involving the more typical school policies deploys similar motifs. There, parents sued a school district after it implemented the state Department of Education’s policy to accommodate transgender students and refrain from sharing that information with parents under certain circumstances.97 Denying a motion to dismiss the claim, the district court in Mirabelli also deployed motifs similar to those in opinions validating parental rights in the context of gender-affirming care. First, as in Tatel, the court rejected a narrow approach to the right claimed,98 finding the defendant’s narrow characterization of that right “cramped,” and offering instead a very broad understanding: “Constitutional rights of parents to bring up a child and decide how to handle health care issues are some of America’s oldest foundational rights.”99 Then, the court deployed the themes of parental freedom against legislative constraint, suggesting that those broad rights are “subordinated by a state's imposition of policies that elevate a child’s state created and unprecedented rights above or beyond the rights of their parents.”100

An approach that construes the rights claimed broadly is also deployed in T.F. v. Kettle-Moraine Sch. Dist., a state of Wisconsin trial court decision that represents a successful challenge to high school policies supportive of older students’ gender identity claims. There, the court adopts the federal approach to fundamental rights, but rejects the school district’s effort to narrow the asserted right.101 While the court seems to acknowledge that the asserted right of parents to direct the education of their children may be too general—and too riddled with exceptions—to support the claim, the court instead endorses the right of “parental decision-making authority, such as making healthcare decisions” as a basis for striking down school policies that would support transgender students.102 This is a somewhat remarkable basis for the claim, not only because the policy at issue involved no specific medical interventions (just emotional support and willingness to adopt the student’s preferred name and pronoun use), but also because this is the exact same right that parents adopt in other states seeking to overturn bans on gender-affirming care. In this opinion, in which the court references the negative effects of “transgenderism” in several places,103 the court’s endorsement of this broad right seems at odds with the approaches taken by ideologically aligned federal judges addressing cases that actually concern healthcare—i.e., those cases that uphold bans on gender-affirming care in which no such broad right is recognized in the parents. Nonetheless, the court concludes:

The School District could not administer medicine to a student without parental consent. The School District could not require or allow a student to participate in a sport without parental consent. Likewise, the School District can not change the pronoun of a student without parental consent without impinging on a fundamental liberty interest of the parents.104

Having broadened the right in this way, the court is able to deploy language of constraint on the part of the school district in its holding that the policy does not survive strict scrutiny. The policy at stake is said to “override” and “supplant” the parents’ decision-making authority.105

A Fourth Circuit dissent is another example of broadly characterizing the right claimed. As in Eau Claire, the majority in John & Jane Parents upheld the dismissal of a claim against a school policy on the basis of standing; the parents who opposed the features of the policy meant to support the identity claims of transgender students, which also included features limiting parental notification if the parents were deemed unsupportive, had not demonstrated any actual or impending injury so long as their children were not seeking to take advantage of any of the policy’s provisions.106 The dissent advanced the motif of constraining parental freedom by maintaining that the parents had stated a claim of an already-occurring injury. The dissent’s endorsement of that claim was necessarily facilitated by an expansive view of the underlying right.

The dissent quotes the with approval from the complaint, adding italics to emphasize the language of constraint: The school district “is taking over the rightful position of the Plaintiff Parents and intentionally hindering them from counseling their own minor children . . . ,”107 stating that the policy “pulls the discussion of gender issues from the family circle . . . ,”108 and provides a continuing harm to the parents “by usurping their constitutionally protected role.”109 To support this theme, the dissent finds a very broad right that is violated, rather than a narrow one, describing it variously as the parents’ “fundamental liberty interest in the ‘care, custody, and control of their children,’”110 and the fundamental right of “decision-making about children’s health, nurture, welfare, and upbringing.”111 This is a much more expansive view of the underlying right than recognized by the opinions on the other side.

Briefs supporting parents who oppose these school policies follow a similar pattern to the dissent in John & Jane Parents. For example, the petition for certiorari in Eau Claire suggests that cases challenging policies like the one in Eau Claire “should be easy on the merits”112 (if only they could survive standing analysis) because of an expansive rather than narrow view of what the right at stake is, the “fundamental constitutional right to make

decisions concerning the rearing of [their] own [children].”113 Aided by that expansive understanding of the underlying right, the petition deploys language to suggest that the parents’ prerogatives are being constrained by the school policy, urging that the Supreme Court “should protect parental decision-making authority when it is so flagrantly usurped . . . .”114 Indeed, the basis for standing proposed by the petition, the injury alleged to be suffered by the parents is the “loss of control” occasioned by the features of the policy that allow teachers and school officials to honor students’ asserted gender identity: “the loss of [the parents’] exclusive decision-making authority—over whether a gender identity transition is in their child’s best interest.”115

The cases, dissents, and briefs supporting the parental rights claim in the school policy context use rhetorical devices that emphasize the freedom of parents and describe the school policies as constraining that freedom. To do so, they characterize the underlying parental right in expansive terms. In terms of the rhetorical devices deployed, these cases most resemble those upholding the rights of parents to direct the medical care of their children in cases concerning gender-affirming care, even while the attitude towards transgender identity in the two sets of cases seems to be at odds. By contrast, the cases that reject claims against the school policies focus on the freedom of schools to enact supportive policies, while describing the parents’ claims as the source of constraint. To dispose of the parents’ claims, those courts and litigants characterize the claimed right in very narrow terms so that it will fail the test of being “deeply rooted.” In that respect, the school policy cases dismissing the parents’ claims most resemble the cases rejecting parental rights claims with respect to bans on gender-affirming care, where the legislative freedom was prioritized over the efforts by parents to restrict that freedom, and where the scope of the claimed right was also characterized in exceedingly specific terms.

The similarity of the rhetorical structures in these two different sets of cases, which have very different political valences, suggests that the choice of rhetorical device is not outcome-determinative. Nevertheless, the limited repertoire of available rhetorical motifs does constrain the way judges and advocates think about structuring arguments in this field.

As similar as the rhetorical structures are in each set of cases reviewed, the impact on the lives of transgender youth is quite different if the parental rights claims are realized in the gender-affirming care cases as opposed to the school policy cases. In the cases challenging bans on gender-affirming care, the alignment of the parents with the interests of the children means that vindicating those rights will help transgender youth live comfortably in society. By contrast, the vindication of parental rights claims in the school policy cases risks circumventing policies designed to support transgender youth. To be sure, right-wing disinformation suggests that there is much more in common between these types of cases, and that both the availability of gender-affirming care and school supportive policies go against parental rights. For example, Tim Doescher of the Heritage Foundation suggests that accessibility of gender-affirming care is actually violative of parental rights because the parents who think they are supporting their children are only being manipulated

by doctors.116 That then goes hand in hand with the fear mongering about school policies, in which bizarre negative advertising during the presidential campaign suggested that the permissive school policies would result in students receiving surgery at school without their parents’ consent.117 By this logic, both aims of the project to marginalize transgender youth are being waged in the name of parents’ rights. However, these false claims mask an important differentiating feature between the two sets of cases, namely the use of parental rights claims to support the expressed interests of the minor children at issue—in cases challenging gender-affirming care bans—or to override those interests—in the cases challenging school policies.

Given the similarity of the rhetorical approaches, one might imagine there is some value to holding judges to their rhetoric, demanding consistency across different sets of cases. For example, one might demand that those judges who support the freedom of parents in the school policy cases, and who facilitate that argument by an expansive view of the right claimed, apply that same logic to cases evaluating bans on gender-affirming care. To my knowledge, there are no cases in which the same court has yet been directly confronted with similar arguments in both sets of cases, most likely because jurisdictions in which schools implement the disputed policies supporting transgender students are unlikely to be ones that also adopt bans on gender-affirming care.118 However, as more of these cases get appealed, or if the Trump administration succeeds in its efforts to shut down gender-affirming care nationwide,119 the logic of the cases appears to be on a collision course, in which an expectation of rhetorical consistency would become relevant.

Scholars have considered the pros and cons of rhetorical consistency as a result of this collision. For example, Professor Hila Keren argues that courts should rely on the same broad understandings of parental rights advanced litigation by conservative groups seeking to give parents more control over school policy to also overturn gender-affirming care bans.120 Similarly, Professor Clare Huntington has suggested that the strong parental rights arguments advanced by parents attacking transgender-friendly school policies might also support parents seeking gender-affirming care for their children.121 Both scholars also recognize the potential danger in demanding this type of consistency to the extent that using this argument to support adolescents seeking gender-affirming care might validate the efforts by conservative groups to gain more control over other aspects of the lives of transgender youth, such as in the school

legislation and

in

context.122 Indeed, one coalition of conservative politicians submitted an amicus brief in Skrmetti, arguing that one reason to validate the parental rights claims in the context of gender-affirming care is to avoid establishing precedent that would weaken parental rights in the context of school policies.123

The ideological valence of the alignments of interest in these cases suggests that many of the advocates and judges on either side would find conforming their arguments for the sake of consistency too chafing. For that reason, rhetorical consistency does not seem to be likely, particularly in light of the role these rhetorical structures play in structuring analysis rather than determining outcomes. Indeed, one can imagine in this field, as in others,124 that judges will blithely fail to adhere to rhetorical consistency; perhaps the proponents of legislative freedom will avoid extolling “laboratories of democracy” when they disagree with the specific legislative action under review. Perhaps judges supporting parental freedom in one context will see similar claims as “constitutional handcuffs” in another. At such times, judges are unlikely to view themselves as hypocrites, but instead will be drawn by the circumstances to a different set of rhetorical devices made available within their legal-cultural milieu.125

The Supreme Court majority’s peripheral comments in its version of Skrmetti provide a small window into this possibility, when reviewed in light of its recent disposition in Mirabelli. To be sure, the Supreme Court’s June 2025 Skrmetti decision did not address the parents’ rights claim rejected by the circuit court, because that was not part of the petition for certiorari that the Supreme Court granted.126 However, matters relevant to the substantive due process claim, if it should return to the Court, were discussed in oral

argument, where Justice Alito and Justice Kavanaugh both questioned the medical science supporting gender-affirming care and suggested that there were conflicting views about its safety and efficacy.127 Based on the argument structure of cases upholding bans of genderaffirming care, the view that the science is evenly balanced would support a decision in favor of legislative freedom.128 Indeed, Justice Kavanaugh made this connection explicit when he asked whether “strong, forceful policy arguments on both sides” meant that it would be best “to leave it to the democratic process . . . .”129 Again, based on that argument structure, this view of legislative freedom would be aligned with an approach that narrows the relevant parental right claimed. Comments in the final decision are similarly suggestive. Although the validity of medical expertise should have been irrelevant to the question the Supreme Court had accepted in Skrmetti, which was simply about the degree of scrutiny required under Equal Protection, the majority opinion nonetheless echoes the claims from oral argument that medical opinion on gender-affirming care is “evolving” and the subject of “fierce scientific and policy debates,” warranting deference to the legislature.130

By contrast, in vacating the Ninth Circuit’s stay of a district court’s injunction, the Supreme Court majority in Mirabelli showed great solicitude for the parents’ claim against the school policy at issue. While, given the emergency posture, the per curiam opinion offers only comments about the likely outcome of the case below, the Court here eschews any deference to the legislative process. In keeping with an approach that favors the parents, the opinion characterizes the right expansively as the right “to direct the upbringing and education of children,” and subordinates the legislative interest in the face of that right, stating “parents—not the State—have primary authority with respect to the ‘upbringing and education of children.’”131 Comparing the rhetoric the majority uses regarding legislation restricting parents’ access to gender affirming care for their children with that regarding legislation seeking to support transgender students suggests the majority might comfortably eschew rhetorical consistency once called upon to decide both issues directly, rejecting parental rights on the basis of a narrow reading in one type of case and accepting them on the basis of a broad reading in another.

Justice Alito’s majority opinion in Mahmoud v. Taylor offered similar language presaging the commentary in Mirabelli. Although Mahmoud was decided solely on the basis of the parents’ First Amendment claim that a school policy of including books addressing LGBTQ issues burdened their religious exercise, the decision’s structure mirrors that of the cases discussed above in which courts have validated parent’s due process rights to object to policies supportive of transgender students. As in those cases, and as in Mirabelli, the majority opinion in Mahmoud demonstrates strong sympathy with

the parents, but little concern for the importance of the democratic process. Indeed Justice Alito here mocks the dissent for invoking the democratic process as an alternative to courtordered intervention, even as he joined an opinion (Skrmetti) several days earlier that takes the opposite view. “In this country,” he scolds the dissent, “the doctrine of judicial review protect[s] individuals who cannot obtain legislative change.”132 In invoking the democratic process and the “patchwork of different policies” concerning inclusive reading material,133 Justice Sotomayor also adheres to the rhetorical structure familiar from lower court cases about school policies, even while calling out the majority on its hypocrisy by citing both Dobbs and Skrmetti in favor of judicial restraint.134 In Mahmoud, there was no occasion to either expand or limit the scope of the right claimed, because the case did not address substantive due process, but proceeded entirely on the basis of the First Amendment freedom of religious exercise.135 For that reason, despite its structural and rhetorical similarity to the school policy cases, Mahmoud is not direct precedent for how the Court will address cases like Mirabelli when they are decided on the merits. Similarly, the Supreme Court’s Skrmetti decision does not establish how the Court would decide the parental rights claims in gender-affirming care cases if and when it chooses to address such claims. However, the manner in which the opinion authors slide into the existing rhetorical structures that animate both of those series of cases do suggest that at least some justices may favor outcomes in each of those types of cases that seem at odds with one another, both doctrinally and rhetorically.

Noting the contradictions in this set of Supreme Court decisions demonstrates that while rhetorical motifs help structure outcomes by providing modes of expression that are ready at hand within the legal culture the judges and advocates inhabit, they do not fully determine those outcomes. Scholars of the Critical Legal Studies movement have described in some detail the phenomenon that legal rhetoric provides considerable opportunity for freedom with respect to results at the same time as it constrains choices.136 For example, Professor Michael Fischl explains:

[The indeterminacy] argument holds that legal outcomes are not constrained by legal reasoning, because legal reasoning can virtually always justify contradictory results in a given case. It does not mean, however, that judicial decisionmaking is altogether arbitrary. Judicial choices are, in fact, constrained in significant ways by a variety of phenomena that make up the professional “culture” within which legal decisionmaking takes place.137

In this respect, the area of law concerning parental rights affecting transgender youth is governed by two different types of freedom and constraint. First are the rhetorical motifs of freedom and constraint previously discussed, which judges and advocates deploy in deciding these cases. These motifs form the cultural norms that then constrain the choices those judges are able to envision.138 And yet, at the same time as these motifs constrain, they offer judges the freedom, as we have seen, to deploy these rhetorical devices in different combinations to achieve opposing results. The motifs are most unlikely to constrain results when ideological valences conflict, as they do in this area of law.

Trapped in the argument structure the motifs produce, few of the cases are able to engage with the parent-child relationship as a basis for adjudicating the strength of the asserted parental rights. One exception is the First Circuit decision in Foote v. Ludlow, a school policy case. Foote might be seen as a case that breaks free of the argumentative structure the other cases follow by refusing to characterize the asserted parental right narrowly, even as it decides that the broadly defined right has not been violated. As we have seen, cases rejecting parental rights claims in both gender-affirming care and school policies contexts typically characterize the asserted right narrowly in order to then claim that it is not a fundamental right because not “deeply rooted.” The First Circuit takes a different route. In Foote, the court maintains that “the Supreme Court’s parental rights cases have never described an asserted right by reference to the specific conduct at issue,” and for that reason, they too will “decline to define the right at issue with microscopic granularity” as other circuits have done.139

The Foote court rejects without difficulty the contention that the school policy of respecting their child’s identity claims infringed on the parental rights to direct their child’s medical care, because nothing the school did could be characterized as medical care.140 However, the court takes greater care to investigate whether a protocol preventing school personnel from sharing information about the teen’s gender identity with the parents violates their right to direct that child’s upbringing. Concluding that the protocol does not, the court suggests that it is because the protocol circumscribes only a small part of the child’s life, the life in school, and does not affect the larger relationship between the child and the parents:

Outside school, parents can obtain information about their children’s relationship to gender in many ways, including communicating with their children and making meaningful observations of the universe of circumstances that influence their children’s preferences, such as in clothing, extracurricular activities, movies, television, music, internet activity, and more.141

The court nonetheless offers some sympathy for the parents and their desire to know more information, recognizing that the same reticence that caused their child to ask for confidentiality in school “might mean they would be cautious outside of school to avoid

signals that might disclose those choices.”142 In this way, the court probes the parent-child relationship and exposes the disconnect between the parents and the child that lies at the heart of the claim, concluding that the problem the parents are trying to pin on the school lies more in that familial relationship than in any way that the school has interfered with their fundamental rights.

What the Foote court’s analysis suggests is that an examination of the parent-child relationship may reveal additional relevant motifs that courts might deploy, if so inclined, to help resolve the dilemma the more common rhetorical motifs have created. I, along with a number of other scholars, have borrowed the metaphor of bricolage described by anthropologist Claude Levi-Strauss as a mechanism for understanding how judges make use of rhetorical motifs.143 A type of junk dealer, the bricoleur, in Levi-Strauss’s description, collects and makes use of scraps discarded from previous constructions to make new items.144 Similarly, judges should be able to look about themselves for cast-off motifs in order to escape some of the constraints they have created for themselves.

An available feature of the cases that judges have not adequately examined is the alignment of the interests between the parent claiming the right and the child at the center of the controversy. Parental rights have traditionally been litigated in contexts in which the parents are potentially at odds with their children, or without regard for the children’s perspective. For example, Professor Dailey and Dean Rosenbury argue that cases like the foundational Troxel v. Granville prioritize parental rights to make decisions while “decentering and devaluing children in the legal analysis.”145 In Troxel, the court upheld the widowed mother’s right to withhold visitation rights from the children’s paternal grandparents without regard to the children’s interest in the ongoing relationship with the grandparents.146 According to Dailey and Rosenbury, “The United States, in contrast to almost every other country in the world, continues to overprioritize parental rights at the expense of children’s interests.”147 Instead, they would “elevate[] children’s broader interests over parents’ individual liberty claims.”148 According to the authors, parental rights should matter “only to the extent they further children’s broader interests.”149 While the authors consider the possibility that their approach might empower a transgender adolescent to obtain gender-affirming care over the objections of parents,150 a conflict

beyond the scope of this article, it also surely supports the notion that when parents are supportive of their children’s interest in obtaining such care, that alignment would make the claim that much stronger.

The notion that a parental rights claim might turn on the alignment of the parents with the interests of the child draws some support from Justice Douglas’s dissent in Wisconsin v. Yoder, suggesting it is an available but unexplored motif. In Yoder, Justice Douglas emphasized that children were “‘persons’ within the meaning of the Bill of Rights” and that when the “vital and important matter of education” was at issue, that “children should be entitled to be heard.”151 His approach suggests that understanding whether the parents were operating against or in alignment with their children’s interests could be determinative of the strength of their parental rights claim.

An examination of circumstances in which the Supreme Court has chosen to override claims of parental rights is also instructive. At the most extreme end, when the parents and child are in irreparable conflict, as in the case of abuse or neglect, the courts will overcome the parents’ fundamental rights to terminate those rights upon clear and convincing evidence.152 Similarly, when existing rights potentially conflict, as in the case of minors seeking abortion (at least before Dobbs), the Court has required a bypass provision to override parental notification laws.153 Professor Naomi Cahn suggests that the lack of alignment between children and parents in this type of context is relevant to understanding the strength of the parental right asserted.154 If it appears that courts are only willing to override parental rights in circumstances of these and similar conflicts, it strengthens the suggestion that those rights should be respected when there is a full alignment of interests. To the extent that the parents’ expressed interest is out of alignment with the interests of the children they seek to represent, that might productively factor into the question of the strength of the right asserted. By contrast, when parents are aligned with their child, claiming a right that their children also claim against a state effort to restrict that freedom, courts might usefully consider that alignment in evaluating the greater strength of the claim.155

To be sure, deployment of a motif focusing on alignment between parents and child is not a perfect answer; it has limitations. For example, as a means of furthering the opportunity for transgender young people to receive appropriate care and thrive, it offers nothing to those adolescents whose parents are unsupportive of their identity, or who lack the means to seek out appropriate care.156 Further, one can imagine scenarios in which parents and children, while aligned, are so out of step with accepted medical opinion that the alignment would appropriately be unavailing. In other words, this motif, like the others,

while expanding how courts might envision outcomes, will be no more determinate in producing outcomes than other similar rhetoric. Yet, it offers advocates and judges an opportunity to escape the structure of the previously deployed motifs and look more fully at the power structures and family dynamics behind the claim.

The rhetorical motifs that currently structure opinions and advocacy in this field limit the ability of judges to look beyond the motifs to the quality of the family relationships presented to them. Considerations of the power dynamic within the family can be a relevant consideration that would allow courts to avoid the upcoming collision between these two sets of cases, both of critical importance to transgender youth. Focusing on the alignment between the interests of parents asserting substantive due process rights and the interests of their children will allow courts to expand their rhetorical repertoire and avoid the unnecessary collision occasioned by their previous deployment of rhetorical motifs.

A consideration of this type of alignment would allow courts to support the parental rights arguments advanced by parents, who, with the advice and support of medical professionals, are aligned with their children seeking gender-affirming care. At the same time, this approach would also enable courts to probe the circumstances of the parent-child relationship in cases like Foote, so that the same broad approach to recognizing substantive due process rights in parents does not mean recognizing them in all contexts, particularly when parents and children are at odds about important matters of identity, as they often are in the school policy cases. Although both lines of substantive due process parental rights cases remain formally unresolved by recent activity at the Court, comments during the Skrmetti oral argument combined with rhetoric in the Skrmetti decision itself and juxtaposed with the recent Mirabelli decision, indicate that the sympathies of the conservative Justices are directly the opposite—that is, against the parents aligned with their children and in favor of those parents seeking to intervene in school policies. These harbingers make it especially important to emphasize now the importance of alignment in promoting parent’s substantive due process rights. As Justice Kagan points out in her dissent from Mirabelli,157 a petition for certiorari in Foote remains pending at the Supreme Court, offering an opportunity for justices to endorse both its expansive understanding of parental rights, and to adopt its careful inquiry into the parent-child relationship. Because the interests of transgender youth are potentially contingent on the recognition of parental rights, whether courts accept this new argumentative motif will be crucial to the ability of transgender young people to grow and thrive.

--- FOOTNOTES ---

Volume 21 Issue 2 Spring

Spring 4-23-2026

Article 4

Susan Etta Keller Western State University

Part of the Constitutional Law Commons, Education Law Commons, and the Law and Gender

Commons

Copyright 2026 by Susan Etta Keller Northwestern Journal of Law and Social Policy

Volume 21 (Spring 2026)

ABSTRACT

* Professor of Law, Western State College of Law, J.D. Harvard Law School. Many thanks to Chan Tov McNamarah, Hila Keren, Alexander Chen, and other participants at the 2025 West Coast Gender, Sexuality & the Law Conference for valuable suggestions; to Anibal Rosario-LeBron, Tomar Pierson-Brown, Nicole Tuchinda, and other participants at the 2025 AALS Sections on Education Law and Children and the Law Works-in-Progress Conference for helping me further refine the paper; to Eunice Park and Stephan Stohler for very helpful reviews; to Jon Davidson for important insight; and to Mackenzie Daw for her excellent research assistance on this and other projects.

INTRODUCTION

1 See generally Susan Etta Keller, Doing Things with the Language of Law and Gender: Using Speech Act Theory to Understand the Meaning and Effect of the Gender Identity Backlash, 24 NEV. L.J. 413 (2024). 2 See id. at 452–458 (discussing these cases). 3 See, e.g., Exec. Order No. 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” 90 Fed. Reg. 8615 (Jan. 30, 2025); Exec. Order No. 14183, “Prioritizing Military Excellence and Readiness,” 90 Fed. Reg. 8757 (Feb. 3, 2025); Exec. Order No. 14185, “Restoring America’s Fighting Force,” 90 Fed. Reg. 8763 (Feb. 3, 2025); Exec. Order No. 14187, “Protecting Children from Chemical and Surgical Mutilation,” 90 Fed. Reg. 8771 (Feb. 3, 2025); Exec. Order No. 14190, “Ending Radical Indoctrination in K–12 Schooling,” 90 Fed. Reg. 8807 (Feb. 3, 2025); Exec. Order No. 14201, “Keeping Men Out of Women's Sports,” 90 Fed. Reg. 9279 (Feb. 11, 2025). 4 United States v. Skrmetti, No. 23–477, slip op. at 11, 24 (June 18, 2025).

5 This claim most commonly accompanies a challenge asserting a claim of sex discrimination under the Equal Protection Clause. See generally L.W. v. Skrmetti, 83 F.4th 460 (6th Cir. 2023). 6 See infra note 31 and accompanying text. 7 See Mirabella v. Bonta, 607 U.S. ___ (2026). 8 Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925). 9 Wisconsin v. Yoder, 406 U.S. 205, 207, 232 (1972). 10 Troxel v. Granville, 530 U.S. 57, 72–73 (2000). 11 Parham v. J.R., 442 U.S. 584, 602–603 (1979).

12 See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976); see also Naomi Cahn, The Political Language of Parental Rights: Abortion, Gender-Affirming Care, and Critical Race Theory, 53 SETON HALL L. REV. 1443, 1454 (discussing the context of parental notification laws for abortion). 13 Reva B. Siegel, The Levels-of-Generality Game: “History and Tradition” in the Roberts Court, 47 HARV. J.L. & PUB. POL’Y 563, 565 (2024). 14 Susan Etta Keller, The Rhetoric of Marriage, Achievement and Power: An Analysis of Judicial Opinions Considering the Treatment of Professional Degrees as Marital Property, 21 VT. L. REV. 409, 411 (1996); see ALBERT LORD, THE SINGER OF TALES 4–5 (Harvard Univ. Press ed. 1960). 15 Id. at 412–413. This perspective is based on the insights in Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. LEGAL EDUC. 518, 527–28 (1986).

16 GREGORY NAGY, THE BEST OF THE ACHEANS: CONCEPTS OF THE HERO IN ARCHAIC GREEK POETRY 3 (Johns Hopkins Univ. Press 1979). 17 See Mirabelli v. Bonta, No. 25A810, slip op. at 6 (Mar. 2, 2026) (California’s policies regarding transgender students “likely violate parents’ rights to direct the upbringing and education of their children.”); see also Parents Protecting Our Child., UA v. Eau Claire Area Sch. Dist., Wis., 145 S. Ct. 14 (2024) (Alito, J., dissenting from the denial of certiorari) (stating that a similar policy raises questions of “great and growing national importance”). 18 See Mirabelli, slip op. at 3 (Kagan, J., dissenting describing pending certiorari petition in Foote v. Ludlow Sch. Comm., 128 F.4th 336 (1st Cir. 2025 . 19 See Complaint for Declaratory and Injunctive Relief at 38, PFLAG, Inc. v. Trump, 769 F.Supp.3d 405 (D. Md. 2025) (including a claim of substantive due process on behalf of the parents of children seeking genderaffirming care).

I. CASES ADDRESSING GENDER-AFFIRMING CARE

20 27 states as of the end of 2024. See Annette Choi, 27 States Have Passed Laws Restricting GenderAffirming Care for Trans Youth, CNN (Apr. 30, 2025, 2:34 PM), https://www.cnn.com/politics/state-bangender-affirming-care-transgender-dg/index.html [https://perma.cc/7W9J-ZRD7]. 21 See Brief of Amici Curiae Am. Acad. of Pediatrics & Additional Nat’l & State Med. & Mental Health Orgs. in Support of Plaintiffs’ Motion for Preliminary Injunction at 14, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021) (No. 21-CV-00450) [hereinafter Pediatrics Brief]. 22 Id. at 12–13. 23 Keller, supra note 1, at 415. Under the approach to speech act theory first advanced by moral philosopher J.L. Austin, performative utterances are those speech acts that have real-life effects and are contrasted with descriptive language, which is often thought not to have such effects. 24 Id. at 440–41. See, e.g., Save Adolescents from Experimentation [SAFE], Vulnerable Child Compassion and Protection Act.

25 See, e.g., ALA. CODE § 26-26-2 (2024) (“The sex of a person is the biological state of being female or male, based on sex organs, chromosomes, and endogenous hormone profiles, and is genetically encoded into a person at the moment of conception, and it cannot be changed.”). 26 See Keller, supra note 1, at 441. 27 Americans Have Grown More Supportive of Restrictions for Trans People in Recent Years, PEW RSCH. CTR. (Feb. 26, 2025), https://www.pewresearch.org/short-reads/2025/02/26/americans-have-grown-moresupportive-of-restrictions-for-trans-people-in-recent-years/ [https://perma.cc/G2E8-838Y]. 28 Of course, the recent onslaught of Executive Orders targeting transgender, nonbinary, and intersex individuals is the culmination of this process. 29 Bostock v. Clayton Cnty., 590 U.S. 644, 649–653 (2020) (holding that discrimination on the basis of sexual orientation and gender identity is sex discrimination under Title VII). 30 See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 593 (4th Cir. 2020); Hecox v. Little, 479 F. Supp. 3d 930, 944 (D. Idaho 2020); Brandt v. Rutledge, 47 F.4th 661, 668 (8th Cir. 2022). 31 See, e.g., Brandt, 47 F.4th at 668. 32 See infra notes 49–61 and accompanying text. 33 See Justice Barrett’s comments, United States v. Skrmetti, 605 U.S. 495 (2025), Oral Argument Tr. at 65:22–25, 66:1–2.

34 L.W. v. Skrmetti, 83 F.4th 460, 471 (2023). 35 Id. (citing Washington v. Glucksberg, 521 U.S. 702 (1997 . There is an echo in this language from Chief Justice Roberts’s Obergefell dissent, where he decries that the Court “seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” Obergefell v. Hodges, 576 U.S. 644, 687–688. 36 Skrmetti, 83 F.4th at 475. 37 See Kavish Harjai, Jeff McMillan & Kimberlee Kruesi, Transgender Health: Comparing Model Bills to Real Proposals, THE ASSOCIATED PRESS (May 23, 2023, 10:56 AM), https://apnews.com/article/transgenderhealth-model-legislation-bills-4eb5e34c72f8a0d91d00158586289ba3 [https://perma.cc/RQ86-WQTY] (Associated Press study comparing proposed legislation to models distributed by conservative organizations Do No Harm and Family Research Council). 38 Skrmetti, 83 F.4th at 472. 39 Id. 40 Id. at 478. 41 Id. at 479.

42 Id. at 475. 43 Id. 44 Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1145 (M.D. Ala. 2022), vacated, Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1215 (11th Cir. 2023). 45 L.W. v. Skrmetti, 83 F.4th 460, 471 (2023). 46 Id. at 472. 47 Id. at 477. 48 Id. at 477. Here, the court overrelies on statements from European authorities that are taken out of context (those European countries still allow what these statutes forbid). 49 Id. at 472.

50 Id. at 477. 51 K.C. v. Individual Members of the Med. Licensing Bd., 121 F.4th 604, 610 (7th Cir. 2024). 52 Id. at 45. 53 Id. at 56. 54 Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1231 (11th Cir. 2023). 55 K.C., 121 F.4th at 610. 56 Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 239–40 (2022). 57 K.C., 121 F.4th at 623. 58 Id. at 632. 59 Dobbs, 597 U.S. at 237. 60 See generally Siegel, supra note 13.

61 K.C., 121 F.4th at 624. 62 Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1221 (11th Cir. 2023). 63 K.C., 121 F.4th at 625. 64 L.W. v. Skrmetti, 83 F.4th 460, 475 (2023) (“Level of generality is everything in constitutional law . . . .”). 65 Id.

66 Id. at 509 (White, J., dissenting). 67 Id. at 510 (White, J., dissenting). 68 Id. at 513 (White, J., dissenting). 69 Brandt v. Rutledge, 677 F. Supp. 3d 877, 923 (E.D. Ark. 2023) (earlier case affirmed on appeal to 8th circuit on EP grounds and remanded to district court for these final findings, based on trial). 70 Skrmetti, 83 F.4th at 493 (White, J., dissenting). 71 See Brandt, 677 F. Supp. 3d at 902; Poe v. Labrador, 709 F. Supp. 3d 1169, 1182 (D. Idaho 2023).

SCHOOL POLICY CASES

72 Brandt, 677 F. Supp. 3d at 923; see also Poe, 709 F. Supp. 3d at 1195 (“As the Court sees it, the appropriately precise way to frame the issue is to ask whether parents’ fundamental right to care for their children includes the right to choose a particular medical treatment, in consultation with their healthcare provider, that is generally available and accepted in the medical community.”). 73 Skrmetti, 83 F.4th at 510 (White, J., dissenting). 74 See, e.g., Pediatrics Brief, supra note 21, at 4. See generally United States v. Skrmetti, (2025). 75 See Poe, 709 F. Supp. 3d at 1198 (criticizing the Sixth and Eleventh Circuit decisions on a similar basis: “If the right is narrowly defined as the right to seek a specific medical treatment, the entirety of modern medicine would fall outside of the scope of a parent’s right to control their children’s health care. That is so, because no such medical treatment could be shown to be deeply rooted in our nation’s history and traditions. Circumscribing the right in this manner means there would be no constitutionally protected right for a parent to seek for their children, without state interference, a whole host of critical 20th and 21st Century medical innovations, e.g., noninvasive fetal heart monitoring, penicillin, insulin, organ transplants, the polio vaccine, corrective heart surgery, and mRNA-based vaccines for the COVID virus.”)

76 See, e.g., Brief in Opposition at 3, John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622 (4th Cir. 2023). 77 See id. at 3–4. 78 See id. at 4; Doe v. Manchester Sch. Dist., 324 A.3d 921, 923–24 (N.H. 2024). 79 See John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622, 628, n.3 (4th Cir. 2023). 80 Id.; Parents Protecting Our Child. v. Eau Claire Area Sch. Dist., 95 F.4th 501, 504–07 (7th Cir. 2024). 81 Mirabelli v. Bonta, No. 25A810, slip op. at 2 (2026). 82 Id. at 3. 83 Id. at 5.

84 Foote v. Ludlow Sch. Comm., 128 F.4th 336, 357 (1st Cir. 2025). 85 Parents Protecting Our Child., 95 F.4th at 504 (holding that the litigating parents lacked standing because there was no suggestion that the policy being challenged had been implemented or would be implemented with respect to their own children). 86 Id. at 506; see also Doe v. Del. Valley Reg’l High Sch. Bd. of Educ., 2024 U.S. Dist. LEXIS 221194, at *49 (D.N.J. 2024) (indicating that even if the plaintiffs successfully asserted a fundamental right, “Defendants are likely to successfully show that their stated goals of protecting transgender students from discrimination at school and of fostering a diverse learning environment are compelling state interests . . . .”). 87 Parents Protecting Our Child., 95 F.4th at 506. 88 Brief in Opposition to Cert. at 25, John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622 (4th Cir. 2023). 89 Lee v. Poudre Sch. Dist. R-1, No. 23-cv-01117-NYW-STV, 2024 WL 2212261, at *29–30 (D. Colo. 2024).

90 See, e.g., Doe, 2024 U.S. Dist. LEXIS 221194, at *31; Willey v. Sweetwater Cnty. Sch. Dist. No. 1 Bd. of Trs., 680 F. Supp. 3d 1250, 1272 (D. Wyo. 2024). 91 Regino v. Staley, No. 2:23-cv-00032-JAM-DMC, 2023 U.S. Dist. LEXIS 118967, at *11 (E.D. Cal. 2023); see also Doe, 2024 U.S. Dist. LEXIS 221194, at *34 (“To find that a policy directing a school district to respect an individual student’s preferred name and pronouns infringes on Plaintiff's constitutional due process rights, this Court would have to significantly expand the scope of parental rights . . . .”). 92 Brief in Opposition to Cert. at 24, John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622 (4th Cir. 2023). 93 Id. at 24. 94 But see Foote v. Ludlow Sch. Comm., 128 F.4th 336, 348 (1st Cir. 2025) (“declin[ing] to define the right at issue with microscopic granularity.”). Foote’s different approach is discussed infra at notes 133–139 and accompanying text. 95 Tatel v. Mt. Lebanon Sch. Dist., No. 22-837, 2024 U.S. Dist. LEXIS 176782, at *66 (W.D. Pa. 2024). 96 Id. at 92.

97 Mirabelli v. Olson, No. 3:23-cv-0768-BEN-VET, 2025 U.S. Dist. LEXIS 3166, at *4–5 (S.D. Cal. 2025). 98 Id. at 27 (rejecting the proposed description of the right offered by the State Defendants that parents “do not have a fundamental right to be informed of their students' gender identity at school, and accommodating a student’s social transition at school is not medical care triggering any right to parental involvement.”) 99 Id.; see also the later decision by the same court granting a permanent injunction: Mirabelli v. Olson, 2025 U.S. Dist. LEXIS 264381, at *21 (S.D. Cal. 2025) (“The right of parents to make decisions about their children -- including decisions on education, medical care and religious training — is long-recognized and deeply rooted in American history.”) 100 Mirabelli v. Olson, 2025 U.S. Dist. LEXIS 3166, at *31 (S.D. Cal. 2025). 101 T.F. v. Kettle-Moraine Sch. Dist., No. 2021CV1650, slip op. at 6 (Cir. Ct. Waukesha Cty. 2023). 102 Id. at 8. 103 For an explanation of why the term “transgenderism” is associated with bias against transgender people, GLAAD, see https://glaad.org/transgenderism-definition-meaning-anti-lgbt-online-hate/ [https://perma.cc/N329-JK2E]; Fact Sheet: Term to Avoid – “Transgenderism,” GLAAD (Jan. 10, 2025), https://glaad.org/term-to-avoidtransgenderism/ [https://perma.cc/7A9U-KHPG].

“Transgenderism,”

Anti-LGBTQ

Defined:

Online

Terms

Hate

104 T.F., No. 2021CV1650, at 12. 105 Id. at 15. 106 John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622, 636 (4th Cir. 2023). 107 Id. at 636 (Niemeyer, J., dissenting) (emphasis in original). 108 Id. 109 Id. at 637. 110 Id. at 645. 111 Id. at 646. 112 Petition for Writ of Certiorari at 1, 15, Parents Protecting Our Child., UA v. Eau Claire Area Sch. Dist., 95 F.4th 501 (7th Cir. 2024), cert. denied, 145 S.Ct. 14 (2024).

III. ALIGNMENT OF INTERESTS

113 Id. (quoting Troxel v. Granville, 530 U.S. 57, 65–66 (2000 . 114 Id. at 5. 115 Id. at 19.

116 Tim Doescher, Biden’s Push for “Gender-Affirming Care” Betrays Parental Rights, HERITAGE FOUND. (July 7, 2022), https://www.heritage.org/gender/commentary/bidens-push-gender-affirming-care-betraysparental-rights [https://perma.cc/NZ8C-NXL9]. 117 See Chase Strangio, Trump’s Anti-Trans Attacks Won’t Stop With Us, TIME (Jan. 21, 2025, 4:00 AM), https://time.com/7208569/trumps-anti-trans-attacks-wont-stop-withus/?fbclid=IwY2xjawH9Wa5leHRuA2FlbQIxMQABHWyYSY3kn5U56FDbH828WSRKdoMICN_RNzj ChXcgAMiYdP6ECCDn8aQahg_aem_DO712SrAk25Cg6jsjmmrxQ [https://perma.cc/UA66-G8SD]. The helplessness and fear that blatant falsehood inspired in parents might cause them briefly to empathize with parents rendered powerless to help their children escape the agony of gender dysphoria. 118 With recent developments, the Supreme Court has come close, but has so far managed to avoid a direct confrontation between the competing visions of parental rights. See infra notes 126–131 and accompanying text. 119 See Exec. Order No. 14,187, 90 Fed. Reg. 8771 (2025). 120 Hila Keren, Due Care in a Conservative Court, 2025 WIS. L. REV. 1, 59 (2025). 121 Clare Huntington, Parental Rights: Rhetoric Versus Doctrine, 91 U. CHI. L. REV. 503, 509 (2024).

122 See Keren, supra note 120, at 12; Huntington, supra note 121, at 507. 123 See Brief for Conservative Officials, Advisors, and Activists as Amici Curiae Supporting Petitioner at 11– 16, United States v. Skrmetti, (2024) (No. 23-477). 124 See, e.g., Curtis A. Bradley & Ernest A. Young, Unpacking Third-Party Standing, 131 YALE L.J. 1 (2021) (discussing the incoherence of Supreme Court Third Party Standing doctrine); Michael I. Lurie & Michela Petrosino, Deference for Me, But Not for Thee: State Inconsistency on Administrative Deference, YALE J. ON REGUL.: NOTICE & COMMENT (Oct. 23, 2023), https://www.yalejreg.com/nc/deference-for-me-but-not-forthee-state-inconsistency-on-administrative-deference-by-michael-i-lurie-and-michela-petrosino/ [https://perma.cc/LKE6-PZGK] (discussing the inconsistency of the application of the administrative deference doctrine); Katherine Franke, Religious Freedom for Me, but Not for Thee, WASH. POST (Sept. 28, 2018), https://www.washingtonpost.com/opinions/religious-freedom-for-me-but-not-for-thee/2018/09/28/ the 297fffb4-c340-11e8-8f06-009b39c3f6dd_story.html inconsistency of Supreme Court jurisprudence with respect to religious liberty). Justice Sonya Sotomayor, in her dissent in Mahmoud, points out the inconsistency of approaches taken by the majority to free exercise issues. See Mahmoud v. Taylor, 606 U.S. 522, 601–02 (2025) (Sotomayor, J., dissenting) . 125 Kennedy, supra note 15, at 526; see also Keren, supra note 120, at 68 (pointing out the inconsistency between the anti-regulatory project of cultural conservatives in certain contexts with the impulse to regulate in others, such as gender-affirming care). 126 See supra note 31 and accompanying text. See also Letter of Feb. 7, 2025 re: U.S. v. Skrmetti, OFF. SOLIC. GEN. (Feb. 7, 2025), https://www.supremecourt.gov/DocketPDF/23/23-477/342223/2025020713362 5781_Letter%2023-477.pdf [https://perma.cc/2Y6M-4USB]. From Deputy Solicitor General Curtis E. Gannon notifying SCOTUS that the United States has changed its opinion on the merits of U.S. v. Skrmetti, but urging the Court to continue consideration of the case. In urging the court to continue consideration of the case, and not to substitute the private plaintiff’s petition for certiorari, the new administration ensured for now that the parental rights claim, which was included in the private plaintiff’s petition, would not immediately be addressed. Subsequent to the decision in Skrmetti, the Court formally rejected the pending certiorari petitions list, 606 U.S. ___(June 30, 2025), https://www.supremecourt.gov/orders/courtorders/063025zor_7647.pdf [https://perma.cc/2FN7-GJ5Y].

[https://perma.cc/V8DX-BDWL]

the private plaintiffs. Order

(discussing

from

127 Transcript of Oral Argument at 14, 49, 87, 92, United States v. Skrmetti, (2025) (No. 23477) (as noted by the Solicitor General, such considerations were irrelevant to the question before the court of what level of scrutiny should apply to the Equal Protection claim). 128 See supra notes 42–56 and accompanying text. 129 Transcript of Oral Argument, supra note 127, at 41; see also Keren, supra note 120, at 87–88 (highlighting this comment’s emphasis on the democratic process and critiquing its narrow view of what democracy requires). 130 Skrmetti, 605 U.S. at 525, 529, 547 (Thomas, J., concurring) (exalting “the wisdom, fairness, or logic of legislative choices.” Rather than supporting that deference on the basis of good arguments on both sides, Thomas utterly dismisses the views of medical experts who support gender-affirming care as having “compromised their medical recommendations to achieve political ends.”). 131 Mirabelli v. Bonta, 146 S.Ct. 797, 803 (2026) (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925 .

132 Mahmoud v. Taylor, 606 U.S. 522, 563 (2025). 133 Id. at 618 (Sotomayor, J., dissenting). 134 Id. at 619–20. See also Mirabelli, 146 S.Ct at 808 (Kagan, J., dissenting) (noting a similar hypocracy: “Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today’s majority.”). Justice Kagan also notes the additional irony that the court specifically chose not to address the substantive due process claim in Skrmetti. Mirabelli, 146 S.Ct. at 808 n.3. 135 That’s true even as the Court relies heavily on Wisconsin v. Yoder, 406 U.S. 205 (1972), for validating the parents’ right to religious exercise while ignoring that case’s additional reliance on the parents’ substantive due process rights. See Mahmoud, 606 U.S. at 605–06 (Sotomayor, J., dissenting) (criticizing the majority’s reading of Yoder). 136 See Kennedy, supra note 15, at 527–28; see also Keller, supra note 14, at 413. 137 Richard Michael Fischl, Some Realism About Critical Legal Studies, 41 U. MIA. L. REV. 505, 529 (1987).

138 See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 24– 25 (1984) (“Considered choices can be described and even predicted to some extent because they are conditioned by legal culture, conventions, ‘common sense,’ and politics.”). 139 Foote v. Ludlow Sch. Comm., 128 F.4th 336, 348 (1st Cir. 2025). 140 Id. at 350. 141 Id. at 355.

142 Id. 143 See, e.g., Keller, supra note 14, at 415–16; J.M. Balkin, Too Good to Be True: The Positive Economic Theory of Law, 87 COLUM. L. REV. 1447, 1488 (1987); see also Susan Etta Keller, Viewing and Doing: Complicating Pornography’s Meaning, 81 GEO. L.J. 2195, 2233–34 (1993) (using the bricolage analogy for the process of constructing sexuality); N.E.H. Hull, Networks and Bricolage: A Prolegomenon to a History of Twentieth-Century American Academic Jurisprudence, 35 AM. J. LEGAL HIST. 307, 317–19 (1991) (applying the analogy to the process by which jurisprudents like Llewellyn and Pound constructed legal theories, and cataloging other uses of the concept bricolage in the legal setting); Mark Tushnet, The Bricoleur at the Center, 60 U. CHI. L. REV. 1071, 1072 (1993) (applying the analogy to the jurisprudence of Cass Sunstein). 144 CLAUDE LEVI-STRAUSS, THE SAVAGE MIND 17 (George Weidenfeld trans., 1966). 145 Anne C. Dailey & Laura A. Rosenbury, The New Law of the Child, 127 YALE L.J. 1448, 1471 (2018). 146 Troxel v. Granville, 530 U.S. 57, 63 (2000); see also Dailey & Rosenbury, supra note 145, at 1471. 147 Dailey & Rosenbury, supra note 145, at 1472. 148 Id. at 1452. 149 Id. 150 Id. at 1534 (writing in 2018 before any of the recent legislation banning gender-affirming care, the authors understandably focus on this dispute, as they probably assumed that with parental authorization there would not be obstacles to such care).

151 Wisconsin v. Yoder, 406 U.S. 205, 243– 45 (1972). 152 See Santosky v. Kramer, 455 U.S. 745, 747–48 (1982). 153 Bellotti v. Baird, 443 U.S. 622, 639 (1979). 154 See Cahn, supra note 12, at 1463. 155 See Keren, supra note 120, at 83 (arguing that when “parents follow doctors’ advice and embrace and advance their children’s wishes . . . presumptions regarding parents’ fitness and ability to make the best choices on behalf of their children should be the strongest.”); see also Complaint at 38, PFLAG v. Trump, No. 8:25cv337 (D. Md. 2025) (“The Due Process Clause of the Fifth Amendment protects the fundamental rights of parents to decide on medical care for their children—an interest that is especially strong when it aligns with the judgment of medical providers and their adolescent children.”). 156 See Martin Guggenheim, The (Not So) New Law of the Child, 127 YALE L.J.F. 942, 953 (2018) (addressing the inadequacy of parent/child law in general to address the needs of marginalized youth).

CONCLUSION

157 Mirabelli v. Bonta, 146 S.Ct. 797, 806–07 (Kagan, J., dissenting).