This article first appeared in the April 18, 2025 edition of Complete Colorado.
In a recent Complete Colorado column, I addressed House Bill 1312, which seeks to impose leftist gender ideology on parents. I pointed out that the bill violates both the free speech and free press guarantees of the First Amendment. I also noted that it violates another constitutional right: the right of parents to raise their children as they deem best.
Since then, several people have asked me to elaborate on the constitutional right of parents to raise their children. This article does so. It also comments on legislative efforts to promote and impede transgender transitions among children.
Basic constitutional doctrine
The Constitution’s Fifth Amendment bars the federal government from depriving persons of “liberty . . . without due process of law.” The Fourteenth Amendment applies the same prohibition against the states. When these “Due Process Clauses” were adopted, they meant this: When the government sues or prosecutes you, it must follow pre-existing procedures. It can’t make up the rules as it goes along.
Over a century ago, however, the Supreme Court began to extend the Due Process Clauses to protect certain other rights from government infringement. Because this involves examining the substance of a law and not merely procedure, it is called “substantive due process.”
Substantive due process has brought victory and defeat to both conservatives and liberals. Early in the 20th century, the court protected economic liberties. Later, liberal justices demoted economic liberties, but protected abortion (in Roe v. Wade, now overruled), a right to pursue homosexual relationships, and a right of same-sex couples to marry.
The court also relied on the Due Process Clause to recognize a constitutional right to direct the upbringing of one’s own children. (The constitutional right is, of course, in addition to the natural right.) The court first recognized the right in four cases decided in the 1920s. Two of these, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), are staples of the law school curriculum, so the legislative lawyers who drafted HB 1312 should have told the sponsors about them—and perhaps did.
Since the 1920s, the court has applied the right in at least four other cases, decided in 1944, 1972, 1976, and 2000. In 2022, it reaffirmed the validity of Meyer and Pierce.
Limits to parental rights
The court recognizes that parental rights are not absolute. There are two kinds of limits.
The first is that the right does not include everything a parent might inflict on a child. It does not include gross physical abuse, denying basic education, or inculcating race hatred.
But the right does include the decisions loving parents traditionally have made for their children, including inculcating whatever values and standards the parents deem desirable. These include schooling decisions (public? private? religious?), even though schooling usually takes place outside the home. Decisions on sexual rearing are even more tightly associated with home and parenthood than schooling decisions: For eons, parents have taught boys “What it means to be a man” and “the facts of life” and the responsibilities of manhood. Just as they have taught girls about womanhood.
Legislative efforts to intrude on those teachings clearly invade parental rights as the Supreme Court understands them.
The second limit is this: In some circumstances, the state may intrude on the understood scope of the right. However, the state has a heavy burden in justifying the intrusion to the courts.
The Supreme Court has not yet clarified how strong the state’s justification must be. The early cases applied a standard of judicial review that legal scholars call “rational basis with bite.” That means (1) the state must prove a legitimate purpose for interfering with the parent-child relationship and (2) the regulation must actually further that purpose and not be too broad.
HB 1312 would flunk that test. The Supreme Court tells us that enforcing ideological conformity is not a legitimate purpose. Even if you characterize HB 1312 as a health measure, it is too broad. It applies to all children claiming a gender other than their biological sex, irrespective of whether transition really is in their interest.
Strict scrutiny
The Supreme Court’s “rights” doctrine has evolved since the 1920s—and the changes have not been good for HB 1312. The court now says that the liberty of parents to raise their own children is not just any right—it’s a fundamental right. And the court has made it particularly difficult to justify infringing fundamental rights.
For a law infringing a fundamental right to be valid, the state usually must justify the law under a standard called “strict scrutiny.” For HB 1312 to survive strict scrutiny, the Colorado attorney general would have to prove that (1) the state’s purpose in enacting it is not only legitimate but compelling, and (2) there is no other way to serve that purpose. Since HB 1312 probably couldn’t pass muster under the “rational basis with bite” test, it certainly could not pass strict scrutiny.
Laws banning gender transitions
Lawmakers in some other states—such as Florida—want to prevent transitions by children. Is the latter kind of legislation valid?
Your initial reaction might be “Well, if the state can’t promote transition by interfering with parental rights, then it probably can’t stop transition by interfering with parental rights.” Recently a federal trial court ruled that Florida’s ban on transgender procedures for minors was void.
But the issue is more complicated than that. The facts in the Florida case were unusual and parental rights were not involved. Anyway, the Florida decision has been stayed pending appeal.
The Supreme Court mostly likely would rule that a state usually may ban a minor’s transition when the parents have not consented. On those facts, the state is protecting the parent-child relationship rather than interfering with it. Even if the parents have consented, a law protecting a child from an irreversible treatment would serve a “compelling state purpose” and likely be valid.
How the Supreme Court would handle prohibitions on lesser treatments is harder to predict. It might depend on whether it adopted the standard of review from the 1920s cases or the more modern “strict scrutiny.” But that uncertainty does not extend to House Bill 1312.
