Megan Medlicott

Document Type

Article

Disciplines

Constitutional Law

Abstract

Since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, many scholars have expressed concern over how the Dobbs decision may impact other privacy interests that previously have been recognized as protected rights under the Fourteenth Amendment’s Due Process Clause. The substantive due process right associated with a parent’s right to the care, control, and custody of their child, however, is situated differently in comparison to those rights presumably displaced by the Dobbs opinion. A parent’s right, unlike other rights recognized under the substantive due process doctrine, is objectively deeply rooted in our nation’s history and tradition, and is considered fundamental to the American concept of ordered liberty. This Note argues that even after Dobbs, parents continue to possess the right to the care, control, and custody of their child under the Fourteenth Amendment which includes the right to direct their child’s medical care. Thus, statutes that criminalize the prescription of GnRH analogue therapy to minors unconstitutionally infringe on that right. GnRH analogue treatment is commonly referred to as “puberty blockers.” The statutes criminalizing puberty blockers are not grounded in reliable science. Given that gender-affirming care solely affects the health of the individual receiving the care, the state lacks any compelling or important governmental interest that would justify such intrusion on this fundamental parental right. Further, the statutes are not narrowly tailored because they allow for GnRH analogue therapy to be prescribed to children in other medical contexts. Accordingly, the statutes criminalizing the prescription of puberty blockers to minors are unconstitutional under the Fourteenth Amendment’s Due Process Clause.

This Note analyzes the anti-transgender agenda that conservative lawmakers are pursuing from an anti-government perspective. After analyzing the medical science supporting the statutes, it becomes clear that the relied upon data is unreliable and that arguments in support of the statutes are pretextual. Conservative lawmakers are enacting anti-transgender legislation under the guise of “protecting” adolescents, but denying adolescents gender-affirming care is only harming them. To combat the statutes that criminalize gender-affirming care, with an emphasis on puberty blockers, this Note offers litigation strategies based in principles of constitutional law. This Note is a step towards protecting transgender, non-binary, and gender nonconforming youth from anti-transgender legislation and ensuring access to gender-affirming care.

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