What Does the Constitution Say about Gender Dysphoric Children?

An Arizona divorce case involving a gender dysphoric child led to an appellate court ruling invoking the constitutional rights to parent and engage in free speech.

The couple divorced in 2010 with both parents given joint custody of their three children. The father was given final legal decision-making authority over education and medical care for the child in question, who was born male in 2007.

The mother said the boy liked to wear girl’s clothing at home and let him wear a skirt to school. The mother also sent a book to the teacher to read to the class, entitled Princess Boy.  The father said he had never noticed any preference for female items in the child’s behavior and engaged a professional counselor for the boy.  He asked the court to be made the boy’s primary residential parent and to limit the child’s time with the mother. 

After a lot of back and forth, the lower court ordered the mother to remove female-oriented toys from the home and not to dress the boy in female clothing or address him as ‘she’ or ‘her’.   The mother was put under a gag order not to discuss gender issues with the boy or provide any of her three children materials about gender preference.

Although the counselor made no diagnosis of gender dysphoria at first, other professionals were brought into the case who did.  Meanwhile, the father alleged that the mother routinely violated the court’s orders, something the mother denied. He said, she said. 

The lower court ordered both parents not to discuss gender identification issues with the child and to refer all the child’s questions on the subject to the professional counselor.  Neither parent was allowed to promote or discourage a particular gender identification for the child.

On appeal, the higher court relied on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children” previously found under the Due Process clause of the 14th Amendment by the Supreme Court [Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion)].   The Arizona appellate court held that the lower court erred in going beyond just assigning decision-making authority to one parent.  A trial court has no say in what decisions are actually made, generally speaking, and – if it disagrees with the parent’s decisions - all it can do is reallocate the decision-making authority.  Therefore, the decision as to which course of therapy to follow belongs to the parent awarded decision-making authority, in this case the father.

The appellate court also vacated the lower court’s order prohibiting both parents from talking about gender identification issues with the child, as a violation of the free speech rights of both parents and also the child.  The appellate court said that a state statute permitting courts to restrict what is in essence ‘parenting time’ cannot be interpreted in a way that violates free speech rights. [opinion at p.19].

Long story short, the lower court’s orders violated the parents’ constitutional rights to parent and to engage in free speech.  You’ll notice that the appellate court did not come down on one side of the political transgender issue or the other.  It stayed away from the ultimate issues involved.  Instead, the appellate court left the disposition of these matters to the parents, which is probably a good thing given how many left-wing judges there are.

Let me make a couple of things clear:  First, there have always been transgender people and nobody should hate them.  However, I strongly object to the government deliberately trying to create more transgender people. In Fairfax County, Virginia near where I live, the public schools teach gender spectrum and gender fluidity, starting in kindergarten. That’s social engineering and it needs to be stopped.  It’s just more antics of the political Left to tear down the established order so the Left can take over everything.   If they can confuse you about whether you’re a boy or a girl, they can confuse you about anything, including all political questions. Remember, for the Left, the issue is never the issue. The issue is always the revolution.

Articles on transgenderism from the Right commonly observe that gender dysphoric children often grow out of it – it’s just a phase they’re going through – and that to give kids drugs to start them on the road to gender reassignment surgery is nothing short of child abuse.  Decisions like those from the Arizona appellate court protect the rights of parents to influence the outcome for their own children.  It’s up to parents to use those rights aggressively and to stand up to the insanity that has engulfed our nation that is by design trying to turn little boys into little girls, and vice versa - all for the benefit of the radical Left that wants to fundamentally transform and ultimately enslave us all.  Parents, heed the call.