November 27, 2022

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Co-parenting with the government? | The Hill

4 min read

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No one wants to “co-parent with the government,” but many are comfortable with the government restricting other parents’ bad decisions. We see this in perennial fights over book banningpublic school curricula, and, recently, the treatment of LGBTQ children. In a time of rising political division, we need to find common ground for the sake of our vulnerable kids.

Take two examples.  Last week, the Alabama Attorney General cited the Supreme Court’s abortion precedent to support its criminal ban on gender-affirming health services to children. Similar supportive therapy bans have been challenged as harmful, scientifically unsound, and violating parental rights.  

Other states prohibit licensed mental health professionals from trying to change minors’ sexual orientation. Sexual orientation conversion efforts do not change sexual desire but cause harm, including teen suicide. Although parents can still access sexual orientation conversion efforts through unlicensed religious providers, they challenged the bans for violating parenting rights. Courts rejected their claims, concluding that parents have no right to choose “treatments that the state has deemed harmful.”

Both sides might seem hypocritical, applauding parental rights when they dislike regulations and dismissing them for regulations they support; however, if we look at these disputes from the perspective of trust, we might find common ground and drop the hypocrisy charges.

Everything turns on trust.

Children cannot always be trusted to make sound choices, so we let parents decide. But we cannot always trust parents. So, the state steps in to protect children. Of course, states cannot always be trusted, so we insulate parents against state intrusions, excluding governments from controversies about what outcomes best serve children’s needs. 

This balance has never worked perfectly, especially for families of color, but it seemed to function in the past. Sometimes we protected parents with unorthodox views, such as when Wisconsin v. Yoder allowed Amish parents to withdraw children from school after eighth grade. In other cases, we rejected parental demands, such as when courts prevented religious parents from denying their children lifesaving medical care

With less trust in science and government, this balance is broken.

Science can predict the likely effect of treatment; it cannot declare whether healthier outcomes are more valuable than obedience to religious duty. The suspicion that governments use science to smuggle controversial secular views into regulations has emboldened parents to demand more protection. 

This distrust drives disputes about LGBTQ children. From a science-trusting perspective, LGBTQ supporters show no hypocrisy in rejecting parental rights for sexual orientation conversion efforts and embracing rights for parents of trans children. In both cases, they support the parental right to choose medically sound treatments.

The other side is harder to defend. Their suspicion about the accuracy and neutrality of science may affect their views on sexual orientation conversion efforts. They may believe faith prevents teen suicide better than embracing one’s identity and that the benefits of salvation outweigh the benefits of self-acceptance. However, if they oppose limiting sexual orientation conversion efforts because the state must remain neutral about faith and gender identity, how can they support laws controlling parents who want to provide supportive therapy? To be consistent, they should not impose their views on other parents.

Some religious people see themselves in a war against a secular, scientific elite and fear that states will soon seek to mandate supportive therapy for trans youth over the objection of religious parents. 

This is the ultimate failure of trust — believing disagreements are war and not trusting each other to respect good-faith differences, leading to a self-fulfilling prophecy of escalation.

With sensible boundaries and mutual understanding, we can hope to re-establish trust and de-escalate from war to respectful engagement. Those boundaries cannot accept bans on supportive therapy for trans youth, which ignore scientific consensus and impose controversial views about gender identity. However, we must accept limits on state power. Although the current religious use of unlicensed sexual orientation conversion efforts does terrible harm, as do the parents who refuse to provide supportive therapy to their trans children, further restricting parental control would enflame distrust and perhaps exceed the legitimate use of state intervention.

The state cannot intrude too often to improve children’s lives, but parents cannot reject the predictive components of science or seek too often to control other parents’ choices. Trust-building and de-escalation are the way to peace. 

Scott Altman is Virginia S. and Fred H. Bice Professor of Law at USC Gould School of Law and is an expert in jurisprudence, property and family law.

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