Ari Armstrong, Civil Liberties, Exclusives, Gold Dome, Uncategorized

Armstrong: Whose children are they? A look at the limits of parental rights

Have you ever noticed how many of the same people who claim to champion parents’ rights also want to ban various books in public libraries, even though other parents want their children to have access to those books, and ban transgender care for children, even when other parents approve of it for their own children? If you support “parents’ rights for me but not for thee,” you don’t really support parents’ rights. You support forcing other parents to conform to your dogmas.

At the same time, every sensible person recognizes a limit to parental rights. As a parent, you do not have a right to abuse, torture, or kill your child, and you have a positive obligation to provide basic care for your child. Almost everyone agrees with these principles at least in the abstract, but the details can be contentious.

A clear example of a parent crossing the line is Colorado pastor Bob Enyart, who severely beat his seven-year-old stepson with a belt. Here is what the prosecutor of the resulting criminal case, George Brauchler, told Craig Silverman: Enyart “was completely remorseless. At one point, with the picture of the broken skin on the back side of this boy, he proclaimed to the jury that he would like to see that picture blown up and hung over the boy’s bed with the caption, ‘this is how much I love you.’ His position was, spare the rod, spoil the child. It was a cringe moment for those six jurors.” Sick, wrong, and illegal.

Before I said “almost everyone” agrees with the basics. “Mr. Libertarian” Murray Rothbard, infamously, does not. He writes in “The Ethics of Liberty,” “The parent . . . may not murder or mutilate his child, and the law properly outlaws a parent from doing so. [So far so good!] But [uh-oh] the parent should have the legal right not to feed the child, i.e., allow it to die.” Grotesque.

In fact, the state does not impose a hard obligation on parents to care for their children long-term. If you want to give up your child and sever your parental ties, you may do that. Parents can give up newborn babies for adoption. Colorado even has a Safe Haven law “making it legal to drop off an infant at a fire station or a hospital within 72 hours of birth with no threat of child abandonment charges,” as the Colorado Sun reports. Giving up older children is harder but still possible. Obviously that is a bad outcome, but I’d rather a parent give up a child than abuse or neglect the child.

The error that Rothbard makes is to assume that a parent has absolutely no positive obligations toward a child that should be legally recognized. In the context of society, in which others are willing to care for the child, a parent has the bare minimum obligation, morally and legally, to relinquish care of the child to others, if the parent is not willing to care for the child.

Ideally, government (or government-approved organizations) would make it very easy for desperate parents to get children into a healthy environment, and organizations also would, except in extreme cases, try hard to give desperate parents the support they need to resume care of their own children.

Whose children?

A recent documentary featuring numerous conservative Colorado political activists asks the question, “Whose children are they?”  If the question is who owns the children, the obvious correct answer is no one. They don’t belong to anyone in that sense. Or, if you wish, they belong to themselves. Children are not property or slaves of parents, politicians, or anyone else.

But when a parent says “These are my children,” normally the parent means to assert guardianship, not ownership, over those children. My child is mine in the sense that I have moral and legal rights to raise him as I see fit. The question that people really care about is, What are the proper limits of parental rights?

I believe that parents in the U.S. very often violate their children’s rights in ways that should be outlawed. I mentioned the extreme case of Bob Enyart, whose “spanking” clearly crossed the line into abuse. As Steven Pinker has pointed out, horrific treatment of children used to be the norm.

Government has moved in the right direction in recognizing that some forms of “discipline” are abusive. I would go further and outlaw all corporal punishment. You can’t walk up to an adult and whack them with a stick, a belt, or your hand without risking an assault charge, and I think the same standards should apply to children. If you hit your spouse and police hear about it, they’ll arrest you on a domestic violence charge. They should do the same if you hit your child.

In our country, we reject female genital mutilation. Yet parents routinely ask doctors to cut off the foreskin of their male infants’ penises for no compelling medical reason, and many doctors go along with this. I think routine circumcision is male genital mutilation and should be outlawed. Obviously an infant is in no position to consent to a needless surgery. If, once you hit puberty, you want to get your foreskin cut off, fine by me!

Some will say that they have a mandate from God to spank their children or to order the foreskin of their infant’s penis cut off. They will say that they are guaranteed the free exercise of their religion, which requires such behavior.

I would counter that we don’t normally allow people to violate others’ rights just because they wish to freely exercise their religion. We do not, for example, allow someone to cut out their daughter’s clitoris, burn a witch at the stake, or make a human sacrifice to the Sun God, just because they believe God tells them to. The right to free exercise of your religion, like all rights, properly comes with the qualifier, “So long as you do not violate others’ rights in the process.”

As a practical matter, I know our society is not going to outlaw “light” spanking of children or the routine circumcision of infants’ penises any time soon. Those practices, however horrible, remain popular, and we do after all live under a government “by the people,” for better and for worse. To my ear, though, a parent “lightly” spanking a child sounds a lot like a drunk husband “lightly” slapping his wife around. And routine circumcision sounds a lot like genital mutilation. We shouldn’t allow it.

A question of consent

Now we get to the hard questions! When should a child be able to consent to something of which the parent approves, and when should a child be able to consent to something of which the parent disapproves?

I personally dislike tattoos and piercings. If you want to get a tattoo or a piercing, fine by me! But I don’t want either for my body. I don’t think you as a parent have the right to give an infant, who is incapable of consent, a tattoo or a damaging piercing. I will make an exception for earlobe piercings, because the pierce is minimal, and the child can choose to stop wearing earrings in the future with no ill effect.

I probably never will consent to my child getting a tattoo prior to his eighteenth birthday. Too many people regret their tattoos and they’re hard to remove. I will consent only to minor earlobe piercings, if he strongly wants them. But I think other parents have the right to consent to their children of a certain age getting tattoos and piercings, if the child wants, just as I think parents have the right to consent to their child of a certain age getting the foreskin of his penis cut off.

What age is that? Sixteen? Fourteen? Twelve? Ten? Nine years, seven months, and six days? These are not easy questions.

Trans rights

You can proably see where I’m going with this. But let me start off with a hypothetical. Let us say that your twelve-year-old daughter falls under the spell of a religious figure who says that God demands the removal of a female’s clitoris in order to preserve her purity. (In fact, millions of girls remain at risk of genital mutilation in various parts of the world, not specifically for religious reasons.) Let’s say the girl expresses a strong desire to get her clitoris surgically removed. Should she, her parents, or a doctor be able to consent to this? No! If an adult woman wants to get her clitoris surgically removed for “purity,” I suppose she has that right, as terrible as I think the practice is.

Some religious conservatives (and a few nonreligious ones) want to argue that gender-affirming medical treatment for transgender youth is somewhere on the order of clitoris removal. They don’t think children, parents, or doctors should be able to consent to it, under any circumstances. Some don’t even think adults should be able to consent to it.

Such conservatives do not think that there is such a thing as an authentic or psychologically healthy transgender person. What’s more, often they think that being transgender violates God’s will. (Some conservatives still make such claims about being gay.) For example, recently the lobbyist for Christian Home Educators of Colorado suggested that identifying as transgender “violates God’s created order.”

I, on the other hand, think that some people are really or authentically transgender, it’s perfectly fine for them to be transgender, and the rest of us should celebrate them for who they are. That does not, however, answer the question about what children should be able to consent to.

Most people agree that children should not be able to get gender-affirming hormones or surgeries without the consent of their parent or guardian. That is my position. (Complication: What if two parents disagree?) However, I think that a minor should be able to petition a court for emancipation, and, if the court grants emancipation, the person legally should be able to seek such care.

Further, I think that someone who has reached the age of puberty or thereabouts, who has shown serious and protracted identification as the gender other than what matches birth genitalia, whose parents consent (or who has achieved emancipation), and whose doctors also consent, should be able to seek gender-affirming medical care. Writing for the American Medical Association, Jack Resneck Jr. writes, “Every major medical association recognizes the vital role of gender-affirming care in improving the physical health and mental well-being of transgender individuals.”

Trans acceptance

These days, being gay is uncontroversial, or at least tolerable, among everyone but the most intransigent bigots. Our popular governor is a boring gay family man. But it was not so long ago that many gay children had reason to fear “coming out” to their parents. Some still do. Some transgender children face comparable problems.

Parents have a moral responsibility to support their gay and transgender children. If they don’t, when, if ever, should government intervene? The question is whether psychological mistreatment of children ever crosses the line into legally actionable abuse.

Consider a parent who continually harangues a daughter about her weight. The parent constantly calls the daughter fat, calls her a pig, and always criticizes what and how much she eats. Obviously such treatment is abusive and could lead to serious downstream harms, but does it rise to the level of legally actionable abuse? We can imagine an extreme case in which such psychological abuse probably would justify government severing parental rights. Perhaps the threat of such an outcome would induce the parent to make appropriate changes.

Similarly, I think that in extreme cases of parents mistreating their children because they are gay or transgender, government could be justified in severing parental rights. (Again, emancipation is one possibility.)

But what about a parent who believes that being gay or transgender violates God’s will, tells their gay or transgender child as much, refuses to use a transgender child’s preferred name and pronouns, but otherwise treats their child decently and supportively? Such a parent is well within the boundaries of parental rights. People have a legal right to do many things that might be morally wrong.

Here is a big complication: Is it possible for someone to claim to be transgender without “really” or authentically being transgender? According to some people, that is impossible; claiming to be transgender by itself makes a person transgender. I, on the other hand, do not believe that gender is purely a social construct, so I think that not everyone who claims to be transgender necessarily is. I think what makes a person transgender is not just public display but something deep in the person’s psyche.

So can a child be mistaken in claiming to be transgender? Yes. Some transgender activists will not like that answer, but I don’t think they’re taking the reality of gender seriously. If it is possible to “really” be transgender, then it is also possible to “really” not be. If it is impossible for a person to mistakenly claim to be transgender, then it is also impossible for a person to accurately claim to be transgender.

I think being transgender means something more than just social pronouncements and displays, and that explains why gender tends to be stable over time. Similarly, when I identify as a man, I am saying that it is like something to be a man, psychologically, on top of having male genitalia, and I’m not just going to wake up tomorrow as a woman.

This raises the possibility that a parent might correctly believe that their child who claims to be transgender really isn’t. Obviously such a disagreement can create a lot of unfortunate tension between the parent and child. But, whether a parent is right or wrong in making such an assessment, the parent still can act decently toward the child.

In my view, a parent should err on the side of accepting the child’s self-identified gender and using a child’s preferred name and pronouns. Even if the child later “grows out of” being transgender, what is the harm in giving a child space to explore their own identity? At the same time, I certainly am not going to say that a parent who expresses skepticism toward a child’s transgender self-identification, and who declines to use a child’s preferred name and pronouns, strays outside the boundaries of parental rights.

I do hope that parents who run in conservative circles reflect on the anti-transgender hysteria whipped up by various right-wing commentators and do not allow themselves to be swayed by it. Just as some people have demonized Catholics, immigrants, and minorities, so some conservatives demonize (literally!) transgender people and others. Decent people reject scape-goating.

At the same time, we should remember that government is run by politicians and bureaucrats, not angels or philosophers. We should lean heavily toward recognizing parents’ rights to raise their own children as they judge best, and against trusting politicians and bureaucrats to interfere with families. Generally, parents know their children best and have their children’s best interests closest to heart.

We cannot demand perfect parents, and often we must tolerate highly imperfect ones (sometimes I struggle with the stick in my own eye). Parents have a right to do all sorts of things that I regard as bad choices, such as fill their children’s heads with religious nonsense and let them drink a lot of soda. In the context of nonviolent behavior, only in extreme cases should government deem parental mistreatment of children legally actionable abuse.

Public schools and trans acceptance

What about Colorado House Bill 1039, “concerning non-legal name changes for students in schools”? This bill, heavily amended since its introduction, says that school officials have to use a student’s “chosen name. . . to reflect the student’s gender identity.” Most people would grant that schools should recognize a student’s chosen name and pronouns if the parents are on board. But what if a parent disapproves?

I do think parents are within their rights to choose a school that declines to recognize a child’s preferred gender-affirming name and pronouns, even though I think them doing so usually is a mistake. The underlying problem is that government taxes parents to fund schools that parents do not necessarily prefer. My solution is for government to stop doing that, but hardly anyone agrees with me. So I guess we’ll continue to pretend to be shocked that government-run schools become so politically divisive.

The upshot is that parents properly have wide latitude in how they raise their children, even when they make mistakes. I may disapprove of how you parent, but I will defend to the death, or at least vigorously, your right to parent that way. Within reasonable limits.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.


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