The Supreme Court’s Judicial Blindness to Children in OT 2025

Children, who are “constitutionally different” and uniquely vulnerable to their circumstances and environments, need and deserve government that will give their constitutional rights special respect. At the least, we should expect our three branches of government to avoid and prevent active targeting of children’s health and safety. And yet, the Roberts Court majority has repeatedly done the opposite this Term, ignoring district court findings when they are inconvenient and ruling on the shadow docket when a merits ruling was there for the taking. Increasingly, the majority’s treatment of children’s rights has been elided into and disappeared by its characterization of “parental rights,” furthering a judicial blindness to children’s humanity that is harming the health and safety of some of our most vulnerable Americans.

In a previous Expert Forum post, we explored the Chiles v. Salazar merits ruling that relegated state-level bans on sexual orientation and gender identity change efforts (SOGICE, or “conversion therapy”) to the hinterlands of strict scrutiny, condemning these protective bans to a “strict in theory, fatal in fact” review. Most major national health care associations have condemned SOGICE as both ineffective and dangerous; none have endorsed it. National organizations like the Trevor Project have extensively documented the harm SOGICE inflicts on LGBTQ+ youth. Yet the only justice to pay attention to the extensive trial court record of these facts is Justice Jackson in her solo dissent. What argument was powerful enough to overcome clear danger to children? The putative “free speech” rights of the therapist, whose modality of treatment is now insulated from state-level prohibitions. Current efforts to ease barriers for people to sue SOGICE providers for malpractice once those harmed become adults may have deterrence value but can never protect children and youth like a ban would (advocates hope that malpractice insurers take note).

Little v. Hecox and West Virginia v. BPJ, decided on the merits, likewise presented a ban for Court review. This time, the ban on trans girls participating in sports acted to harm more children than it putatively helped. The decision affirmed the constitutionality of these bans, which target trans girls, but not trans boys, for exclusion from participation in sports, constituting discrimination on the basis of sex. Arguments evaluated access and fairness as to cisgender girls alone. The value of trans girls’ access to their health and safety was not a factor, even though the record contained ample evidence of the benefits of sports to all youth. The record was devoid of evidence that trans girls’ participation was unfair to anyone; vibes are not facts. Justice Sotomayor’s dissent confirmed that the case should have gone back to the trial court for evaluation of the question whether trans girls’ sports participation meant danger to other participants or unfair advantage for trans girls. The Court was presented with a record demonstrating that sports participation benefits all youth and excluding trans girls stigmatizes them and endangers their social, emotional, and physical health.  Missing was evidence that trans girls’ participation harms other youth. The Court nevertheless ruled that bans on trans girls’ participation in sports do not violate Title IX or the Equal Protection Clause.

The Court ruled on one of the most consequential cases for children this Term on its shadow docket, even though multiple cases engaging the same issues are queued up waiting for a merits hearing. Mirabelli v. Bonta engaged the question whether a school district may forbid its teaching staff from contacting parents to share information about their child’s gender identity at school. The parents and teachers who sued the district claimed that their rights to substantive due process, free exercise of religion, and free speech entitled them to student “gender information” (of trans and gender-diverse youth only). In granting summary judgment and a preliminary injunction to plaintiffs, the Southern District of California rejected the “student’s state-created right to privacy” in elevating parental “dominan[ce].” The district court thus rejected a bounty of record evidence related to “forced outing” and rejected the idea that protecting the privacy and well-being of trans and gender-diverse (TGD) youth is a worthy goal that is achievable by the California state constitution. The Ninth Circuit reversed. While a petition for rehearing en banc was still live, Appellants applied to the Supreme Court for an emergency ruling, and the Court obliged in a seven-page per curiam. The shadow docket opinion waved away bountiful evidence of the harm of “forced outing” policies, noting only that parents are the best guarantors of their child’s safety and “the injunction here promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives.” And thus the Court followed the district court in waving away record evidence of the myriad harms of “forced outing.” Justice Kagan’s trenchant dissent objected to the “Court jump[ing] the line” by skipping over the Ninth Circuit’s en banc process. It jumped this line by ignoring a number of cases presenting the same issue that are queued up for cert review, allowing a decision based on an incomplete record and wholesale importation of Mahmoud v. Taylor, an OT 2025 case engaging the parental right to excuse children from LGBTQ+ content in school. The decision significantly increases logistical and administrative burden in schools, to say nothing of the harm done to youth. The Court majority used Mirabelli to again expand parental rights, ignoring the constitutional rights to due process—and the health and safety—of the TGD youth in question.

In OT 2026, the Court will decide St. Mary v. Roy, a case testing whether religious organizations providing state-subsidized services that must meet a state statutory requirement of equal access may nonetheless discriminate against LGBTQ+ children and families in providing that public benefit. Colorado established a Universal Pre-Kindergarten Program by statute to ensure preschool services for every four-year-old child in Colorado. Funding recipients are required to comply with Colorado’s equal opportunity policy, which forbids discrimination on the basis of sexual orientation and gender identity, inter alia. The plaintiffs wish to exclude or expel TGD children and children of LGBTQ+ families. The District of Colorado made extensive factual findings of potential harm to children in ruling for Colorado, preserving the state’s ability to require all subsidized preschools in its Universal Pre-Kindergarten Program to comply with a generally applicable equal opportunity participation requirement. The Tenth Circuit affirmed, and the Court granted certiorari. First Focus on Children, the organization that Bruce leads, will participate as amicus curiae, expanding the district court factual findings on harm to demonstrate that while the exclusion and expulsion rights that Appellants seek will harm children’s health and safety, Appellants have failed to demonstrate that they will benefit the health and safety of any child. It remains to be seen whether the Court will acknowledge and validate the careful district court findings and the due process rights of LGBTQ+ children and families when it hears the case, likely later this year.

The right-wing organizations bringing these cases insist that parents have rights to control every aspect of their child’s development, claiming that “the state” is attempting to “indoctrinate” children and steal them away from parents, rather than acknowledging that children are people. We remain steadfast in our insistence on the identity, autonomy, humanity, and dignity of children as human beings protected by the laws and constitutions of the United States and, as relevant, their states of residence. The rights of parents certainly exist, but they are not absolute, and they cannot be allowed to override the rights of LGBTQ+ and other youth by default. This is especially the case both when the position taken by “parental rights” advocates purports to limit the rights of other people’s children and when their position harms the health and safety of any child while not benefiting the health and safety of any person.

Equality and Liberty, Individual liberties, LGBTQ Equality