Parental Rights Will Not Save Us
“It is an erroneous and impious affection that all God’s Political Laws are repealed… The fifth commandment set in the Head of the Second Table, is the summary or ground of human politics, commanding the duties of Princes and people, though parents and children only are expressly mentioned.”
Richard Baxter, A Holy Commonwealth (1659), Thesis 213.
“Parental rights” are not enough. The all-powerful, all-encompassing Fourteenth Amendment can guarantee them in the most strident terms, but they are still not enough to shield us from the gathering storm.
As a species of a liberal, rights-based regime, parental rights are subject to the same limiting principle of all other “rights” in a liberal order, viz., “harm,” informed by the primacy of the individual and his subjective actualization. Insofar as it goes, confining the purview and action of parents to the good and welfare of their children is, on its face, legitimate. Surely, we can agree that parents should not be allowed to abuse or neglect their children. The real action, however, is in the definition (and scope) of abuse and neglect, of “harm.”
In our current legal order, the meaning of “harm” and, conversely, “welfare,” has been farmed out not to judges, as most assume, but to “experts”—regime professionals. Increasingly, the psychologized individual reigns supreme. Welfare, the child’s best interest, is dictated by professional opinion unto liberation from traditional, anachronistic constraints and must, therefore, account for updated, popular conceptions of the good, of virtue, of fulfillment.
In any case, whether a standard of the child’s best interest or parental fitness formally governs, the inquiry yields the same results. Perhaps unavoidably, in family law—a predominately state-based field of doctrine—judges are afforded significant discretion. Even liberal critics lament that the best interest standard amounts to whatever judges prefer. Again, in itself, this is not the problem. Judges—the trier of fact—must judge, after all, and any pretending to automated neutrality is a fantasy that strips law of its human form and practice.
Rather, it is the accepted, officially endorsed, publicly reasoned definition of “best interest,” of “welfare,” as laundered through “expert” testimony, that troubles us.
In other words, the established anthropology and, indeed, theology, always control. As much as originalists and constitutionalists may long for a neutral statute parsing grammarian for a judge, such discretion as exhibited in discrete state-centric legal fields like family law are unavoidable. Again, someone must make the call. Someone must actually judge. But this judgment is never detached from, shall we say, cultural ex parte opinion.
The folly of conservatives thus far has been to embrace a fanciful, ostensibly neutral, bare (physical) harm-based legal ethic predicated on a baptized secularist ethic. Under this limited view, in the case of family law, as long as someone isn’t beating their children or neglecting to feed them, all is well.
But, of course, welfare, a child’s best interest, extends beyond mere maintenance. Obviously, the well-being of children is more robust than simple survival. Currently, educational neglect is an actionable cause for the removal of children from parental custody, something Benjamin Rush would’ve endorsed. And “harm” is not limited to the physical. Psychological or mental suffering is also cognizable under law, as alluded to already, as are moral dimensions to abuse. For example, exposing children to obscene sexual materials can constitute abuse.
Again, not all of this is absurd. It is a clunky recognition of human nature that extends beyond flesh and blood, of well-being that exceeds bare temporal existence and, in a sense, signals parental duties vis-a-vis human flourishing.
The governing standard in child welfare cases obviously requires some determination of what children need, educationally, nutritionally, emotionally, etc. It means that the law must have cognizance of what children are and what their nature requires for flourishing. At bottom, it is a metaphysical-moral question the answer to which dictates the parameters of the exercise of parental rights—it forms the barrier between liberty and license. Further, law, as a subaltern science, requires an external standard of the parent-child relationship vis a vis well-being. In other words, the law must appeal to societal expectations, to a tradition that articulates social norms, and to a higher law.
The problem is the conservative allergy to thickening human relations in the moral sense. Hollow procedure, “rights,” have been trusted, indeed, foisted upon the rank and file, for decades as the limit of public moral theorizing and, simultaneously, as a sufficient bulwark to progressive encroachment. Never theoretically viable, this worldview is now being, to borrow from the neo-conservatives themselves, mugged by reality. Bureaucratic obsession with procedure and parchment guarantees has yielded a fatal inattention to the nature of the higher things those provisions are meant to enshrine and protect.
Some “conservatives” still haven’t noticed that they’ve been criminally accosted. Even as they are assaulted, they cling to the morally thin, proceduralist myths of the rights-based regime which would unnaturally bifurcate the public and the private, the societal and the familial, which would pretend that abstractions offer real protection.
To be plain, if human nature itself is up for grabs, if the definition of marriage is exploded, if technology has circumvented natural pregnancy, if gender is fluid, if all sexual norms are subverted, then we cannot expect the “rights” which have enabled all the above—moral equivocations—to come to fruition to preserve traditional privileges and immunities of the family or to actually protect children from predation.
Enter David French. With him, equivocation abounds because it must. Back in March, French compared what we can call the California model and the diametrically opposite Texas model.
At the time, California had just enacted a statute that provided authority to courts to permit minors to receive “gender-affirming health care” over the objections of a custodial parent. Moreover, the law effectively designated California a haven for minors seeking this “care” insofar as one section of the statute disallowed courts from considering, as a factor in child custody disputes, whether a non-custodial parent had removed a child from a custodial parent in violation of custody arrangements in other states for the sake of transporting them to California for “gender-affirming care.” This is a monumental shift in family law to be sure.
California has since gone further. In Newsome nation, adherence to a gendered reality, the created order, in parenting constitutes “abuse” and endangers the welfare of children. Under the updated AB 957, a child’s “health, safety, and welfare” specifically includes “a parent’s affirmation of the child’s gender identity.”
Now, under Section 3011 of California’s Family Code, courts could remove children from homes that reject or disapprove of transgenderism as a kind of gender “abuse.” Another bill would require foster parents to commit to affirmation of a child’s gender identity (in accordance with DHS guidance).
By contrast, the Texas model. Initially, Governor Greg Abbott directed the Texas Department of Family and Protective Services to investigate as “abuse” surgical and pharmaceutical interventions for minors irrespective of parental consent. A judge swiftly blocked this maneuver.
Then, in early June, Texas banned outright “gender-affirming” procedures and treatment for minors. As of September 1, the law will revoke the medical licenses of doctors who provide treatments like puberty blockers, hormone therapy or surgery to minors and will halt public funds from going to public hospitals, universities, and the like that provide or facilitate such care to minors.
Writing prior to the Texas law’s passage, though making note of it elsewhere, French equivocated between the California and Texas models. The problem? Both violated, in his view, parental rights. California was disrupting legal custody arrangements and Texas was intervening in “private” parental-medical decision making—an argument analogous to that of many abortion proponents. For French, the nature of the act in question, viz., administering artificial, untested, life-altering treatment to children for the purpose of disrupting their natural, gendered development, did not enter the equation.
That is, French doesn’t want to consider whether there is an objective moral difference between the two approaches, whether Texas is right and California is wrong as a matter of good governance for the health, safety, and welfare of their citizens according to the light and law of nature; whether the human anthropology and teleology of the child and the centrality of the family vis a vis society should control “rights.” French’s world is one of “harm” and “consent,” not metaphysics.
But these state actions aren’t rightly understood as “state attacks on civil liberties,” as French would have it. They are (technically) examples of inevitable and proper symbiotic relationship between law and morality.
Whereas civil libertarians like French limit the prerogative of law, of the constitutional order, to management of social conflict, law itself is meant to lead men to virtue, if gradually, to invoke Thomas Aquinas. Per another Thomist principle, sin is always a privation of the good. For our purposes, this means that laws cannot be amoral, and some morality will guide their function and trajectory.
In the case of California, the operative morality is evil; in the case of Texas, it is good. The former denies the light and law of nature, true anthropology, and the latter affirms it. Without this kind of moral discrimination between cases, a just legal regime is impossible. Limits to parental authority must be dictated by the well-being of children and the well-being of children must be informed by the nature of children themselves, including their God-given biological sex. Medical treatment should conduce to their flourishing according to the created order, not their mutilation according to quack theories from quack theorists. In short, the law must actually punish evil and reward good. A liberal rights regime endeavors to farm that determination out to individuals; a just regime would reserve that determination for those entrusted with the care of the community, their health, safety, and welfare.
So much for David French. What the Texas-California dichotomy signals is a broader trend of stark legal and moral contrasts emerging between red and blue states.
Over the past few months, there has been a surge of red states restricting so-called “gender affirming care” for minors. The laws ban or significantly limit the use of puberty blockers, cross-sex hormones and transition surgery. Idaho, Iowa, Kentucky, Mississippi, Oklahoma, Tennessee, and Texas have passed bans on such treatments with no exceptions. Nineteen states in all have enacted some kind of restriction on gender transition procedures and medication. Lawsuits against this legislation are already beginning to pile up.
In response to the Oklahoma ban, Democrat Senate Minority Leader Kay Floyd cast the bill as “an attack on parents’ rights. This is taking away from parents their right to make medical decisions for their child.” In other words, the Frenchist response—never questioning whether this particular medical decision was moral or immoral.
On the flip side, alongside California, states like Colorado, Washington, Oregon, Minnesota, and Vermont are branding themselves as “refuge” states and shielding the “parental right” to chemically stifle natural adolescent development and carve up child bodies—of course, they’re all just following the science. Similarly disturbing developments can be found across the country, and not just in blue states (or Canada), and this trend didn’t start yesterday.
Back in 2018, a court in Ohio removed a child with “gender dysphoria” from the custody of her biological parents and awarded it to the grandparents because the former were not supportive of hormone therapy. In October of last year, the Indiana Court of Appeals upheld the trial court’s decision to remove a child from the custody of non-affirming parents. On the flip side, an Arkansas law banning transition treatments for minors was struck down at light speed by a federal judge. A similar Florida law was also halted. All the while, California’s efforts remain relatively unimpeded.
The case of Ted Hudacko and his son “Drew” received attention in 2022 after Abigail Shrier (and others) spotlighted it. Mr. Hudacko’s parental rights were ultimately terminated because he did not sufficiently affirm his child’s gender identity and objected to hormone treatment and reassignment surgery. As Shrier notes, it was not disclosed to the parties to the case that the California Superior Court Judge, Joni Hiramoto, herself has a transgender child. But, that fact notwithstanding, Shrier rightly surmises that,
“Judge Hiramoto may have had an ethical duty to disclose these facts to the parties. But the more I delved into the case, the more I realized that gender ideology has already achieved a powerful hold on our court system. It’s possible that almost any family court judge, with or without a family conflict of interest, could have reached the same conclusions.”
Shrier attributes this to the immense success of “gender activists to educate family law practitioners,” or rather, to reeducate them in the latest and greatest standards of abuse and neglect, especially medical neglect (per “sexual health” standards) and emotional abuse (i.e., inadequate affirmation). Indeed, “Judge Hiramoto referred twice in the transcript to the things she had learned in ‘judicial college’ and ‘family law classes for judges,’” writes Shrier.
Mentioned already, family law is increasingly farmed out to psychologists, psychotherapists, and the like, professions infected with the cutting-edge gender ideology; the same goes for legal academia. And the experts agree: judges are undereducated, too inexperienced to interrogate these things.
At annual judicial conferences and the like blue state judges receive issue-based trainings and collude about equitable approaches to emergent issues. State bar associations offer similar guidance to the judiciary through publications and training, projecting a sort of industry consensus and best practices. DEI and other diversity trainings are also regularly conducted within state judiciaries as much as they are at the corporate level. This apparatus now channels the full schedule of LGBTQ dogma. Family courts are no exception. (The same activist-administrators are brainwashing your children too. Indeed, they’re counting on their efforts to affirm deviant gender beliefs to change the future.)
As Dr. Michelle Cretella, executive director of the American College of Pediatricians, outlined in an interview with The Federalist, there have been two waves of application and execution of transgender ideology in the family court system.
The first wave began circa 2016 in the divorce and child custody setting wherein parents who objected to puberty blockers and hormone therapy were disfavored in custody proceedings and ultimately stripped of their ability to weigh in on medical decisions— “medical neglect” being the background predicate in this setting.
The second wave, the current wave, features mandatory reporters, especially “emergency room staff, therapists, or doctors reporting parents to Child Protective Services who refuse to affirm their child’s false gender.” In turn, “abuse” has come to include the “medical neglect” of objecting to gender-affirming treatments for the minors in question. The best interest standard has always considered the wishes of children themselves, but now, a disproportionate deference to such wishes is in play albeit in a disingenuous sense given the conditioning of such wishes by the activist experts themselves—the interpretation and framing of certain behaviors or proclivities.
Yet another wave is coming and may already be here as well:
The third wave will be here soon, according to Cretella, when schools trigger investigations into parents of children suffering from gender dysphoria, by reporting children “afraid to come out to their parents as their authentic selves.” We can see this wave forming from the multitude of school protocols in the news, such as allowing students from K-12 to choose their gender identity.
The end goal is the same, Cretella said: “removal of a child based on accusations of medical neglect.”
The interview with Cretella is from 2019. (Note that even in 2018 The American Academy of Pediatrics urged parents to support the chosen gender identity of their children by pursuing medical means to delay puberty.) Notice the emphasis on “medical abuse and neglect” in the annual training for judges from the National Council of Juvenile and Family Court Judges.
The same standards are promulgated from on high too. The federal Department of Health and Human Services issued guidance last year on the medical necessity—per expert advice, of course—of gender affirming care for minors:
“The Department of Health & Human Services (HHS) stands with transgender and gender nonconforming youth and their families—and the significant majority of expert medical associations—in unequivocally stating that gender affirming care for minors, when medically appropriate and necessary, improves their physical and mental health. Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous. Such attempts block parents from making critical health care decisions for their children, create a chilling effect on health care providers who are necessary to provide care for these youth, and ultimately negatively impact the health and well-being of transgender and gender nonconforming youth.”
The medical necessity qualifier again only empowers the expert class and situates gender dysphoria as a disability protected by federal law, as the HHS document later explains. HHS has made sure to tie any federal monies flowing from it to this standard. And don’t worry, federal “family preservation” funding is available to help parents “develop or learn additional parenting skills” so that they can “build capacity to effectively parent an LGBTQI+ child or youth.”
All of this is but one iteration of the larger aim of the progressive intelligentsia to disrupt traditional, and especially Christian, family life, chiefly by weakening parent-child bonds and farming parental formation out to other sources.
In 2020, Elizabeth Bartholet of Harvard Law School published a harrowing polemic in the Arizona Law Review calling for regulation of homeschooling—presumptive seedbeds of racism and abuse. Homeschooling parents are “extreme ideologues,” in Bartholet’s view, “committed to raising their children within their belief systems isolated from any societal influence.” That is, homeschooling insulates children from the social conditioning of public schools that elites like Bartholet require for their equitable, pluralistic society. In an interview, Bartholet cast parenting outside of the public school apparatus as “authoritarian” and “dangerous.”
At the same time, public schools are only becoming less attractive to Christian parents. Teachers are mandatory reporters of child “abuse” (which, in blue states may increasingly include non-affirmation of gender identity or resistance to “medically necessary” treatment) and are encouraged to keep the confidence of students questioning their biological gender. In other words, teachers aren’t supposed to tell parents about these things when students confide in them.
Michael Torres recently summarized the situation well at City Journal:
“[School] Districts are using legal theories pushed by activist groups like the Gay, Lesbian & Straight Education Network (GLSEN). Among the most important are that children have a federally guaranteed right to privacy from their parents in school, that the Fourteenth Amendment to the U.S. Constitution establishes children’s right to transition without the consent or knowledge of their parents, and that Title IX of the Education Amendments of 1972 protects transgender students from the ‘harassment’ of school districts ‘outing’ them to non-compliant parents. The Title IX theory, the most chilling, is supported by the radically progressive notion that parents represent a danger to the welfare of transgender children until they prove otherwise by providing ‘affirmation.’”
GLSEN also claims that the Family Educational Rights and Privacy Act (FERPA) establishes a child’s right to privacy from their parents vis a vis gender identity and the rest. School districts are starting to agree, however novel GLSEN’s position may be. And as Bostock has shown us, the fact that Title IX only considers the traditional sex binary in its prohibition against discrimination in schools does not mean transgenderism is precluded from anachronistic application. Activists continue to pursue the addition of gender dysphoria to the Americans with Disabilities Act (ADA) for similar purposes. As Torres points out, the ACLU is also very suspicious of “unsupportive parents” of transgender students. Teachers, they claim, are much better positioned to assist in the “growth and development” of such students.
And so, as homeschools and other alternatives are maligned as hotbeds for extremism and abuse, public schools aid and abet the social contagion that is adolescent gender dysphoria in secret—until a child demands transition “treatment” and the “unsupportive” parents get hauled into court, that is.
Of course, the media is in on the game too and diligently play their part. When an affirming parent violates custody agreements (or court orders) and flees to blue state havens they are cast sympathetically as “refugees.” Any related blue state legislation is vigorously defended from “misinformation,” but they remain conspicuously silent when blue states say the quiet part out loud, as it were. But when red states take action to protect the rights of non-affirming parents, and to restrict “affirming” procedures generally, they are roundly decried as unconstitutional child nappers. See how that works?
The media apparatus especially excels at disseminating an artificial sense of urgency that undergirds all public developments in the sexual revolution. This sense is even more heightened now by the constant threat of teen suicide and self-harm attached to gender dysphoria and shamelessly laid at the feet of “unsupportive” parents as a credible threat, an indictment of their parental love. This kind of emotional manipulation was on full display in Judge Hiramoto’s questioning—a series of increasingly absurd hypotheticals—of Ted Hudacko in the case mentioned earlier.
The bottom line is that empty appeals to “rights” will not and, indeed, cannot sufficiently address the decidedly moral battle—a metaphysical crisis—emerging, just as rights talk was inadequate to solve such divisions the last time our states were so evidently divided. This, in part, is because abstractions such as “rights” are subject to the external imposition of interpretive standards. That is, something besides the right itself as recorded on the page dictates its strength and parameters. Further, the same moral and metaphysical standards determine the victor when rights clash. Our moment requires more basic, fundamental weapons.
True anthropology must govern here as it used to. In this case, an anthropology not only of the individual child but of the family—the most basic, indispensable unit of society. This is the foundation of law, not psychological man, but natural, metaphysical man. As James Wilson put it in his famous lectures,
“Man, the nexus utriusque mundi [“the joining point of the two worlds,” that is, of the material and the immaterial worlds], composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected.”
This man, body and soul, is naturally social. Family life is the first instantiation of his nature. Calling it the “most universal relation in nature,” William Blackstone’s Commentaries delineated the power of parents within the family:
“The power of parents over their children is derived from the former consideration, their duty: this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it.”
In turn, children are obligated, in gratitude, to care for their elderly parents, especially if impoverished. This familial reciprocity undergirded and justified claims to authority vis-a-vis duty of care.
Well, the child-parent relation is “most universal” second only to that of husband and wife, the voluntary association that naturally and properly ordered, yields children. The reciprocity of duties and privileges that springs from these natural relations must always and everywhere be centered and defended. Carving up the familial community—in the case of transgenderism, quite literal carving is in play—to dictate family policy on the basis of a discrete part of the whole is nonsensical and suicidal.
Such bifurcation and alienation—the effect of bare rights talk and proceduralist constitutionalism—erodes the indispensability of these pre-societal relations, relations from which society arises and relations that a political order is meant to reflect. Indeed, the polity depends on the natural, reproductive family for its longevity, and not just in the literal reproductive sense. The family as a society is a microcosm of broader political society. Norms, customs, traditions are incubated and perpetuated there. Political life is practiced there.
When the family is treated by our regime as no more than the sum of its parts, as severable components, without consideration of its communal essence as a natural communion and hierarchy, this is a reflection of governance writ large. A state that ceases to recognize the legitimacy and priority of communities that precede and undergird it, appealing instead only to its own parameters, is by definition signaling statism—that is, tyranny. And where rebellion against nature is permitted, political anarchy is not far behind.
Conclusion
The significance of the battle over transgenderism cannot be overstated. Among other things, it is a battle over reality, of course. Creation itself is on trial. Less appreciated is how the state treats the family reveals how the state conceives of itself and conceives of its relationship to its citizens. When it does not govern for the common good of citizens it is necessarily lapsed into tyranny, into cruelty, and dare I say, abuse and neglect. But the common good as the aim of good governance is always conditioned by the nature of the object in view.
What confronts us is an apparatus of rulers who don’t know what abuse is because they don’t know what the human person is; they don’t know what is good for children because they abstract them from the context of their rearing, the natural place for their flourishing: the family. Children, and families, will never be protected in a regime that can no longer conceive of what those things are.
All of that being the case, Christians who seek not only American civil and moral renewal but the preservation of their own families, only have one short-term option: flee blue states. Go to where the good of the family and, thereby, the good of the child is still upheld by magistrates. If emigration is not possible, create barriers, establish distance, between your families and mandatory reporters, viz., those that, whether infected by regime ideology or not, will now in some cases be legally liable for failing to report your anti-trans bigotry evidenced by your insistence on not feeding your children puberty blockers or, maybe, reading them the Bible which in some parts of the country is now derided as “vulgar,” “indecent,” and even “pornographic,” and banned from school libraries.
Especially avoid public schools, now hotbeds of indoctrination governed by policies meant to detach children from their families during their formative years. More positively, build and strengthen high-trust communities, ideally centered in or growing from churches. The long-term solution is, as is usually the case, more ambitious: reinjecting our polity and its law with true anthropology which yields determinations and discriminations conducive to human nature, to the created order.
As I have written elsewhere, while anthropology and other truths discernable from the light and law of nature are objectively true, consciences can be seared against it and minds clouded from it. Social conditioning matters for pedagogy. The left gets this. That is why the Bible, which contains the summary of the natural law, has been replaced in public schools by pornographic, homoerotic sex manuals. The boundaries of abuse and neglect will inevitably be dictated by the public reason, by societal mores vis-a-vis human nature. It’s simply a matter of which, not whether. And a true anthropology once reflected in Anglo-American law will not control absent social conditioning, and pedagogy, to instill proper assumptions and impulses, norms and expectations.
In a way, then, the short-term reaction facilitates the long-term solution. A new generation must be conditioned by true metaphysics, true anthropology, true theology before the law, its procedures and provisions, can be trusted again to rightly adjudicate the well-being of our children and secure the foundation of society itself, viz., the family. Without this renewal our polity is undone, and “parental rights” will not save it.
Image Credit: Unsplash
