Eric A. DeGroff (Regent University School of Law) and Steven Fitschen (National Legal Foundation) have posted The Not-so-Silent Epidemic of Secret Gender-affirming Policies in the Nation’s Schools: Parental Rights and the Promise of Pierce v. Society of Sisters on SSRN. Here is the abstract:
Does the new epidemic of secret gender-transition policies in the public schools violate the constitutional and common law right of fit parents to direct the care and upbringing of their children? This Article argues that policies hiding from parents the fact that school personnel are helping their children socially transition to the opposite sex while in school violates the historic right of parents to direct their children’s medical care. The Article traces the origins of parental rights in the common law and the broader Western legal tradition and analyzes the current state of the law concerning medical decisionmaking on behalf of minors. It then argues that secret gender-affirming policies constitute a form of medical decisionmaking independent of parents—and even if assisted social transitioning does not constitute medical treatment per se, it so influences children’s future choices that it deprives parents of a meaningful opportunity to assist their children in navigating these issues. Thus, the effort of public schools to exclude parents from the decisionmaking process at the outset does contradict historic common law principles and arguably violates parents’ constitutional rights.
Lawrence Solum