The Supreme Court Is Being Tested on Whether Parental Rights Apply Equally in Blue and Red States
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On Tuesday, we saw some of the earliest fallout from the Supreme Court's decision earlier this summer in United States v. Skrmetti that allowed a Tennessee law that blocks health care for trans minors to go into effect. The new ruling hit neighboring Arkansas, but it actually covers a wide swath of the country, expands on the ruling in Skrmetti , embraces that decision's indifference toward the health and safety of trans children, and inflicts serious harm on numerous families across the Midwest.
In Tuesday's ruling, the US Court of Appeals for the 8th Circuit released an 8–2 decision in Brandt v. Griffin , holding that Arkansas' ban on gender-affirming care for minorities survives three different challenges to its constitutionality. In part, this en banc ruling followed Skrmetti , in which the Supreme Court's conservative supermajority held that a similar ban does not violate the equal protection clause because it does not classify based on transgender status or sex, thus surviving the minimal evaluation standard of rational basis review. However, in Skrmetti , the court denied a petition by minors and their parents that argued the ban also infringes on parental rights protected under the due process clause. Moreover, no one has argued that the Tennessee ban conflicts with the freedom of speech of health care providers protected under the First Amendment. Now, the highly conservative 8th Circuit went beyond Skrmetti, dismissing those two additional challenges brought by parents and doctors .
The 8th Circuit's decision demonstrates a rising distorted constitutional regime. Courts controlled by conservative majorities follow the Supreme Court's supermajority and stray from established analysis and precedents to achieve ideology-driven outcomes. They effectively carve out a new troubling norm : Constitutional rights for me but not for thee.
First, consider the equal protection clause. The Arkansas ban on gender-affirming care patently discriminates against transgender adolescents, vehemently depriving them of medical assistance in handling the difference between their gender identity and the sex assigned to them at birth. That should have subjected the ban to heightened scrutiny, but instead, under the “ incoherent mess of contradiction and casuistry ” originally exhibited in Skrmetti, the ban was only evaluated under a rational basis review. Still, Skrmetti arrived at the Supreme Court with minimal facts. By contrast, as Judge Jane Kelly, the only democratic appointee currently on the 8th Circuit, insisted in her dissent, the trial in Brandt offered rich evidence of animus toward transgender people that, according to conventional constitutional analysis, should have failed Arkansas' arguments even under forgiving scrutiny.
Second, the majority in Brandt offers an irregular and partial analysis of parental rights protected for over a century under the due process clause. Dismissing the rights of parents who wish to support their transgender children and find adequate medical care for them, the majority abandons constitutional analysis to favor anti-trans legislation. Instead of recognizing that bans on gender-affirming care recommended to parents by doctors necessarily imply parental rights and thus must be subject to heightened or strict scrutiny, the majority chooses again, and erroneously, a rational basis review. The only reasoning offered is that parental rights are not unlimited, as if any constitutional right is ever unlimited. All the while, the usual analysis allows states to infringe on parents' rights only when their intervention survives heightened or even strict scrutiny, for example, when parents—in contrast to the parents in Brandt —neglect or abuse their children.
Significantly, the precedent suggested to support the move is Dobbs v. Jackson Women's Health Organization , with its assault on the scope of rights recognized under the due process clause. However, Dobbs cannot justify Brandt because parental rights align with rather than deviate from history and tradition; they have been part of our constitutional order from time immemorial. Ask conservative parents and their advocates. They have persistently relied on their parental rights in many contexts, including vaccines, homeschooling, and most recently and increasingly, gender identity issues . Indeed, shortly after Skrmetti , in Mahmoud v. Taylor , the Supreme Court allowed conservative parents to remove their children from the classroom whenever storybooks with LGBTQ characters were used. Perhaps because Mahmoud exhibited ideological bias, emphasizing the rights of religious parents to control the upbringing of their children, no judge on the 8th Circuit, including the dissent, cared to mention it when the rights of parents of transgender minors were at stake.
Third, the Brandt decision selectively minimizes the freedom of speech, despite a relentless expansion of the freedom of speech of those who object to LGBTQ equality, such as in 303 Creative v. Elenis . The majority is quick to dismiss the impact of Arkansas' ban on doctors who wish to support patients with gender dysphoria. It does so on the same day on which the Supreme Court announced that on Oct. 7, 2025, it will hear oral arguments in Chiles v. Salazar —a case in which a therapist argues that Colorado's ban on conversion therapy violates the freedom of speech because it limits her ability to support her patients.
Finding that the ban at hand only incidentally impacts doctors' speech, the 8th Circuit majority states that “Arkansas has a 'compelling interest' in protecting the physical and psychological health of minors.” The question is whether the Supreme Court supermajority will follow the same logic in Chiles , and find that Colorado has at least a similar compelling interest in protecting minors from the known harms of conversion therapy.
Reading Brandt with the recent developments at the Supreme Court in mind, one can only wonder if all the constitutional rights it refuses to recognize are strictly reserved for conservatives. Given the latest potential challenge to marriage equality , this is a particularly devastating possibility.
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