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When Culture Wars Go Way Too Far
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When Culture Wars Go Way Too Far

State efforts to break families over transgender issues threaten foundational American rights.

Last month The Atlantic’s Jeffrey Goldberg published a fascinating interview with Israeli prime minister Yair Lapid. The entire interview is worth reading—especially if you have interest in Israeli politics and the prospects for Middle East peace—but two sentences from the prime minister stood out as particularly insightful. “Everybody is stuck in this left-versus-right traditional dynamic,” he said. “But today, all over the world, it’s centrist versus extremist.”

I wanted to stand up and cheer. Now, to be clear, this is a strange position for me. I’ve always been conservative. In the left versus right context, I’ve always considered myself a man of the right—the Reagan right. But when the extremes grow more extreme, and the classical liberal structure of the American republic is under intellectual and legal attack, suddenly I’m an involuntary moderate. 

So, for example, I’m a person who believes in the traditional Christian doctrines of marriage and sexual morality. I don’t believe in sex outside of marriage between a man and a woman. I don’t agree that trans men are “men” or that trans women are “women,” and while I strive to treat every person I encounter with dignity and respect, I don’t use preferred pronouns because their use is a form of assent to a system of belief to which I don’t subscribe.

That makes me pretty far right, correct? Not when the right gets authoritarian or closes its mind and heart to the legacy of real injustice. I’m apparently the conservative movement’s foremost defender of the civil liberties of drag queens. I’m constantly decried as “woke” in part because I don’t discard all of the relevant insights gained from critical race theory, I strongly oppose efforts to “ban” CRT, and also because I believe in multigenerational institutional responsibility to ameliorate the enduring harm caused by centuries of racial oppression. 

The through line is pretty simple. I’m both a traditionally orthodox Christian and a strong believer in classical liberalism, pluralism, and legal equality. I’m a believer in those political values because I’m a traditionally orthodox Christian. I want to create and sustain the kind of republic that was envisioned by George Washington at his best, a place where “Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid.” 

I do not want to commandeer the government to “reward friends and punish enemies,” and I do want to protect the fundamental freedoms of even the most strident of my political opponents. This is not because they’ll like me if I do, but because it is just and right to defend the rights of others that I would like to exercise myself. 

And that brings me to an extreme escalation of the American culture wars. It’s one thing to believe those who disagree with you are wrong. It’s another thing entirely to believe that your opponents should enjoy fewer fundamental rights—fewer rights to free speech, to religious freedom, to due process.

And now the culture war is escalating to disrupt the bond between parents and children. 

On Thursday California governor Gavin Newsom signed SB 107, a bill the Los Angeles Times said “aims to protect transgender youths and their families from bans against gender-affirming care.” Well, that’s one way to put it. Another is that the bill permits to transgender youth who enter California to obtain life-altering medical interventions without their parents’ knowledge or consent

The bill makes for complicated reading, but the bottom line is clear—a child can cross state lines to obtain “gender-affirming health care or gender-affirming mental health care” and obtain immediate protection from efforts from parents to bring their child home. 

Section 5 grants state courts “temporary emergency jurisdiction” over children in the state who are seeking gender-affirming care. Section 7 treats a petitioner who is entering California so that a child can receive gender-affirming care the same as if they were fleeing domestic violence. Multiple sections prevent the sharing medical information about children even in response to subpoenas, if those subpoenas are “based on a violation of another state’s laws that interfere with a person’s right to allow a child to receive gender-affirming health care or gender-affirming mental health care.”

Let’s put this in plain English. Let’s suppose mom and dad are locked in a custody dispute, and treatment of gender dysphoria is a key component of the dispute. One parent could take the child to California, secure the treatment they seek and then block the other parent even from receiving information about their own child’s treatment. 

Relatives could take a child across state lines, enroll them in a treatment program that the parents object to, block the parents from obtaining information about that treatment, and then block enforcement of child custody orders from the child’s home state. 

While the Constitution is silent on parents’ rights, the Supreme Court has long protected the interests of parents “in the care, custody, and control of their children.” Indeed, in a 2000 case called Troxel v. Granville, Justice Sandra Day O’Connor wrote that these parental interests were “perhaps the oldest of the fundamental liberty interests recognized by this Court.” To call this rule well-established is a profound understatement. Again, here’s Justice O’Connor:

More than 75 years ago, in Meyer v. Nebraska, we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” We returned to the subject in Prince v. Massachusetts, and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” (Citations omitted).

And those weren’t the only cases. My favorite quote comes from the 1972 case Wisconsin v. Yoder: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” (Emphasis added.)

Parents’ rights aren’t unlimited. A state can and must step in to protect children when children are subject to abuse or neglect. But that’s not an exception that swallows the rule. Parents have wide latitude to direct the upbringing of their children, and states have long recognized the necessity of final parental authority before performing even the most minor of procedures on children.

California, for example, still requires parent or guardian approval for body piercing, a far less consequential procedure than the “gender-affirming health care” that it now permits even over parental objection and in defiance of the laws and court orders of other states. 

This wouldn’t be 2022 if the story ran only one way. Just as California has escalated the culture wars by potentially severing the parent/child relationship when parents object to various methods of gender reassignment, Texas now threatens to break families when parents consent to those same treatments.

In February Texas attorney general Ken Paxton wrote to Texas representative Matt Krause and argued that certain “sex-change” or “gender-reassignment” procedures, including various surgical procedures and the prescription of puberty blockers “can legally constitute child abuse under several provisions” of Texas law. 

Texas governor Greg Abbott followed Paxton’s letter with his own directive, stating that “Texas law imposes a duty on [the Department of Family and Protective Services] to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures.” In response, DFPS commenced investigations of at least nine Texas families

The Texas directives and DFPS investigations are currently subject to litigation, and I have little doubt that California will face its own lawsuits. But this is where we are now. It’s not enough to disagree over important matters. Now the culture war requires a direct attack on the most fundamental American liberty interests.

In an excellent, comprehensive piece at Public Discourse, Catholic University professor Melissa Moschella outlines the stakes well. After outlining the risks and side effects of popular “gender affirming” measures like puberty blockers, she writes, “It is clearly untenable to claim that parents who are hesitant to rush their children into risky, controversial medical treatments of unproven efficacy are guilty of medical neglect.” 

But that’s not the entire story. A similar admonition applies to the right. Again, here’s Moschella: “Given current divisions in medical opinion, loving and responsible parents may be convinced that such treatments are necessary for their child’s health. Thus, “it is clearly within the parents’ sphere of constitutionally protected childrearing authority to seek a legal medical treatment for their child following the advice of the child’s doctors.”

I’ve detailed all this before, but red and blue states are in a process of “can you top this” when it comes to punitive culture war legislation. The Supreme Court has blocked multiple California laws and regulations that, for example, compelled pro-life pregnancy centers to advertise for free and low-cost abortions, mandated unconstitutional donor disclosures, and systematically discriminated against religious gatherings during the pandemic. 

Not to be outdone, Texas and Florida have both decided to override the constitutional rights of dissenting citizens. In addition to Texas’s attack on parental rights, the state has passed a social media law that the Supreme Court has blocked once already, and Florida has passed a series of laws that take direct aim at the First Amendment, including a social media law that’s blocked by the 11th circuit and a so-called “Stop WOKE Act” that’s already been partially enjoined by a federal district court judge.  

Yet as serious as the constitutional deprivations are, outside of criminal law, it’s difficult to think of an exercise of state power more raw, immediate, and devastating than the use of state power to sever the bond between parent and child. It is a power to be exercised sparingly, in the most extreme cases. It is not a power to enlist in the culture war over one of the emotional and contentious contests of our time.

At a time of profound public division and deep moral conflict, pluralism suffers from a serious disadvantage compared to the illiberal extremes of far-left and far-right. It’s not utopian. By design it doesn’t “own the libs.” It doesn’t “own” anybody. It accommodates dramatic differences in world view. The illiberal extremes, by contrast, offer an alluring vision for their partisans—ultimate victory and the vanquishing of their opponents.

But when that “victory” severs parent from child, it’s not only unjust, it’s destabilizing. States have many ways to express their values, and they can and should strictly limit access to permanent, life-altering medical procedures for minors. For example, states should pass age restrictions prohibiting dramatic medical interventions for children and at an absolute minimum must require parental consent. But they can express their values and pass their regulations while still remembering a singular moral and constitutional command—leave loving families alone.  

One more thing …

In the most recent Good Faith podcast, Curtis and I discussed education and equity with Rice University’s Ruth López Turley. It was a great conversation, and this was my favorite part—a brief exchange on the difference between the YIMBY and NIMBY approaches to life:

What do you think? I’d love your thoughts in the comments below. 

One last thing …

This is a simple song that I’ve shared before, but I love it. And I especially love this version with Dante Bowe. I really don’t include enough music by Dante. Listen and tell me it’s not awesome. Enjoy:

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.