The Republican Strategy to Abolish Child Abuse
Sep 13, 2024 by David Fowler
Last week a group of “Republicans and other conservatives” filed an amicus brief with the United States Supreme Court explaining how child abuse can be eliminated. It’s a very cogent proposition that liberals should love. So far, no Republicans or “other conservatives” have offered a legally sound rebuttal. Here is mine.
The context for their argument is the Court’s upcoming consideration of the constitutionality of Tennessee’s year-old law prohibiting health care providers from providing hormone “therapy” to minors who, with the consent of their parents, want to change their bodies to match their subjective understanding of gender.
These Republicans are arguing on behalf of parents that the law unconstitutionally intrudes into the parent-child relationship by prohibiting the use of hormones to aid in morphological changes to their child’s body that conform to the understanding of gender embraced by all involved—the child, the parents, and the attending physicians. Here is their summary of the argument (emphasis supplied):
The real question this argument presents to you
This is the underlying question the Republican argument presents to you: If you support the right of “fit parents” to know if the public school is working behind the scenes to let your child “trans” while at school, then, logically speaking, how can you not support the right of parents to “gender transition” their children?
In other words, why would you say the first set of parents has rights regarding gender issues, but the second set of parents does not have rights regarding gender issues?
Paraphrasing Shakespeare, to gender transition or not to gender transition, that is the question. And that question, according to these Republicans, must be left to parents because it entails a “value judgment” on which there are “strongly held views on both sides.”
How have other Republicans (and conservatives) answered this question?
I have asked this same question to numerous leaders of Christian policy and legal advocacy organizations in recent years and, frankly, their answers all begged the fundamental question, which is, “What does it mean to be human?”
For example, the leading Christian legal organization in the country in terms of revenue and general influence offered this bald proposition to me in my response to my question: “[T]here is no constitutional right to sterilize children.”
I find that answer unresponsive and unacceptable, and here is why.
First, the organization assumes the answer to the question of constitutionality and, furthermore, whether sterilization of a child is good or bad depends on what it means to be human.
You may laugh at the idea that sterilizing a child may be “good,” but don’t laugh at the fact that the conclusion that it is bad assumes a certain understanding of what it means to be human.
What these Christian lawyers haven’t grasped yet, along with most people I talk to, is the law doesn’t necessarily share their assumption about the relationship between bodies and human meaning. Why would I say that? Because disposing of this assumption in the law was logically necessary for the Court to redefine the marital relationship—sexed bodies no longer mattered!
What is human meaning in the law at present?
So, the question now becomes whether human meaning embraces conformity of the body to one’s inner sense of gender: which part of you is the “real” you? If the answer is yes, that human meaning embraces conformity of the body to one’s inner sense of gender, that transforms sterilization into a choice within the range of human meaning—body-gender conformity vis-à-vis being procreative.
Third, that leads to this question, that this Christian organization either doesn’t yet see or wants to ignore for lack of a good answer: Do parents have a right to help their child prioritize that conformity over procreative potential?
In sum, neither this legal organization nor any Christian policy organization I am familiar with, nor the Republican Party in Tennessee, has been willing to make any claim about what it means to be human as a matter of law.
For example, in defense of the legislation that became the law, William Lamberth, the Republican leader in the Tennessee House who sponsored it, said that most children who want to change their gender “just need mental health treatment, love, and time.” He said this at least twice.
But notice this: Even what constitutes love turns on what we think it means to be human; the parents in question think they are loving their child, for goodness’ sake!
Perhaps they think making an objective statement about human meaning in court or a legislative proceeding that can be debated is mean, and it is better to implicitly accuse these parents of not loving their child if they seek medical intervention.
How the silence on human meaning abolishes child abuse
The word “abuse” is composed of the root word “use” and the prefix, “ab.” Etymologically, “ab” means “‘away, from, from off, down,’ denoting disjunction, separation, departure.” So, “abuse” turns on what we think is a proper use of ourselves and of others.
Thus, there can only be a real or objective abuse if there is a “disjunction, separation [or] departure” from a given and objective human nature pertaining to everyone and a true meaning to that nature.
Sadly, these Republicans either can’t think of one or won’t say it out loud, and so far, none of the Christian legal or policy organizations I know have done so either.
My rebuttal to these Republicans and my advice going forward
My promised rebuttal to these Republicans is rooted in the long history of the law—the common law—that none of these advocates have yet come to appreciate. Here it is: All human beings are, in principle, reproductive human beings, even if some cannot or do not reproduce, and being procreative entails at least one aspect of what it means to be human.
For that reason, the natural and common law held for centuries that parents have a natural or common law duty to protect their child’s body and limbs, which would include their reproductive systems as a part of the objective givenness of their bodies.
But here is the best and most practical part of my proposition: The United States Supreme Court has repeatedly said that the Constitution was based on this already-existing law about human meaning. That means parents can have no constitutional right to consent to these treatments. It also explains why parents have a right to know if their child is being “trans’d” at school.
If these Republicans and their lawyers had studied the history of law and its development, they wouldn’t be panicked about how far the state should go. And if the Christian lawyers and policy advocates had this knowledge, they wouldn’t be giving unresponsive answers that beg the question.
The context for their argument is the Court’s upcoming consideration of the constitutionality of Tennessee’s year-old law prohibiting health care providers from providing hormone “therapy” to minors who, with the consent of their parents, want to change their bodies to match their subjective understanding of gender.
These Republicans are arguing on behalf of parents that the law unconstitutionally intrudes into the parent-child relationship by prohibiting the use of hormones to aid in morphological changes to their child’s body that conform to the understanding of gender embraced by all involved—the child, the parents, and the attending physicians. Here is their summary of the argument (emphasis supplied):
While the government has a role to play in keeping kids safe, that role is limited, and it does not justify the State second-guessing the judgments of parents acting in good faith who are best positioned to know what their children need.
States have no business overruling the decisions of fit parents who make an informed medical choice for their children that is supported by their doctors, by the medical profession more generally, by the children themselves, and by their conscience. The State is instead trying to impose its own values related to sex and gender on families in a manner that is inherently unequal.
That is not limited government, and it is not constitutional. . . .
People of good faith have strongly held views on both sides of debates on issues involving children and gender dysphoria, and if Tennessee and other states can impose their will on parents, then so can states and local governments that think differently—for instance, by allowing (or even requiring) schools to shut parents out of discussions regarding their child’s gender expression. Beyond the gender-identity context, there is no end to the kinds of parental decisions that local, state, or federal officials could hijack whenever they think they know better than parents.
Government officials have no business interfering with parental value judgments in this manner. The Constitution wisely deposits that power in the hands of parents “to direct the education and upbringing of [their] children.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
States have no business overruling the decisions of fit parents who make an informed medical choice for their children that is supported by their doctors, by the medical profession more generally, by the children themselves, and by their conscience. The State is instead trying to impose its own values related to sex and gender on families in a manner that is inherently unequal.
That is not limited government, and it is not constitutional. . . .
People of good faith have strongly held views on both sides of debates on issues involving children and gender dysphoria, and if Tennessee and other states can impose their will on parents, then so can states and local governments that think differently—for instance, by allowing (or even requiring) schools to shut parents out of discussions regarding their child’s gender expression. Beyond the gender-identity context, there is no end to the kinds of parental decisions that local, state, or federal officials could hijack whenever they think they know better than parents.
Government officials have no business interfering with parental value judgments in this manner. The Constitution wisely deposits that power in the hands of parents “to direct the education and upbringing of [their] children.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
The real question this argument presents to you
This is the underlying question the Republican argument presents to you: If you support the right of “fit parents” to know if the public school is working behind the scenes to let your child “trans” while at school, then, logically speaking, how can you not support the right of parents to “gender transition” their children?
In other words, why would you say the first set of parents has rights regarding gender issues, but the second set of parents does not have rights regarding gender issues?
Paraphrasing Shakespeare, to gender transition or not to gender transition, that is the question. And that question, according to these Republicans, must be left to parents because it entails a “value judgment” on which there are “strongly held views on both sides.”
How have other Republicans (and conservatives) answered this question?
I have asked this same question to numerous leaders of Christian policy and legal advocacy organizations in recent years and, frankly, their answers all begged the fundamental question, which is, “What does it mean to be human?”
For example, the leading Christian legal organization in the country in terms of revenue and general influence offered this bald proposition to me in my response to my question: “[T]here is no constitutional right to sterilize children.”
I find that answer unresponsive and unacceptable, and here is why.
First, the organization assumes the answer to the question of constitutionality and, furthermore, whether sterilization of a child is good or bad depends on what it means to be human.
You may laugh at the idea that sterilizing a child may be “good,” but don’t laugh at the fact that the conclusion that it is bad assumes a certain understanding of what it means to be human.
What these Christian lawyers haven’t grasped yet, along with most people I talk to, is the law doesn’t necessarily share their assumption about the relationship between bodies and human meaning. Why would I say that? Because disposing of this assumption in the law was logically necessary for the Court to redefine the marital relationship—sexed bodies no longer mattered!
What is human meaning in the law at present?
So, the question now becomes whether human meaning embraces conformity of the body to one’s inner sense of gender: which part of you is the “real” you? If the answer is yes, that human meaning embraces conformity of the body to one’s inner sense of gender, that transforms sterilization into a choice within the range of human meaning—body-gender conformity vis-à-vis being procreative.
Third, that leads to this question, that this Christian organization either doesn’t yet see or wants to ignore for lack of a good answer: Do parents have a right to help their child prioritize that conformity over procreative potential?
In sum, neither this legal organization nor any Christian policy organization I am familiar with, nor the Republican Party in Tennessee, has been willing to make any claim about what it means to be human as a matter of law.
For example, in defense of the legislation that became the law, William Lamberth, the Republican leader in the Tennessee House who sponsored it, said that most children who want to change their gender “just need mental health treatment, love, and time.” He said this at least twice.
But notice this: Even what constitutes love turns on what we think it means to be human; the parents in question think they are loving their child, for goodness’ sake!
Perhaps they think making an objective statement about human meaning in court or a legislative proceeding that can be debated is mean, and it is better to implicitly accuse these parents of not loving their child if they seek medical intervention.
How the silence on human meaning abolishes child abuse
The word “abuse” is composed of the root word “use” and the prefix, “ab.” Etymologically, “ab” means “‘away, from, from off, down,’ denoting disjunction, separation, departure.” So, “abuse” turns on what we think is a proper use of ourselves and of others.
Thus, there can only be a real or objective abuse if there is a “disjunction, separation [or] departure” from a given and objective human nature pertaining to everyone and a true meaning to that nature.
Sadly, these Republicans either can’t think of one or won’t say it out loud, and so far, none of the Christian legal or policy organizations I know have done so either.
My rebuttal to these Republicans and my advice going forward
My promised rebuttal to these Republicans is rooted in the long history of the law—the common law—that none of these advocates have yet come to appreciate. Here it is: All human beings are, in principle, reproductive human beings, even if some cannot or do not reproduce, and being procreative entails at least one aspect of what it means to be human.
For that reason, the natural and common law held for centuries that parents have a natural or common law duty to protect their child’s body and limbs, which would include their reproductive systems as a part of the objective givenness of their bodies.
But here is the best and most practical part of my proposition: The United States Supreme Court has repeatedly said that the Constitution was based on this already-existing law about human meaning. That means parents can have no constitutional right to consent to these treatments. It also explains why parents have a right to know if their child is being “trans’d” at school.
If these Republicans and their lawyers had studied the history of law and its development, they wouldn’t be panicked about how far the state should go. And if the Christian lawyers and policy advocates had this knowledge, they wouldn’t be giving unresponsive answers that beg the question.
