Over the last five years, repeated waves of attacks on transgender children have presented a dichotomy for legal advocates hoping to help transgender and nonbinary kids: how to handle parental rights. On the one hand, conservative legislators and judges have used parents’ rights to justify measures such as statutes requiring teachers to out a student to their parents if the student requests that teachers use a different name or pronouns than those that appear on their formal paperwork. Last year’s Mahmoud v. Taylor held that the religious rights of parents reach into the public school curriculum so extensively that a school presenting any curriculum sufficiently in conflict with parents’ beliefs – in the case, approximately one book per school year with an LGBTQ main character or theme – must provide parents a warning and an opportunity to opt their child out of being exposed to those curricular materials. On the other hand, parents’ rights could be a promising avenue when parents support their transgender children, since the Supreme Court’s 2025 holding relating to gender-affirming care bans did not address potential claims brought on behalf of the parents of children seeking such care. To be sure, the parents whose rights have been vindicated before the courts and who have successfully lobbied in favor of protective legislation have all been antitrans. Consequently, pursuing a parents’ rights claim risks further retrenching conservative notions of which parents are entitled to have their rights protected.
Professor Aníbal Rosario Lebrón’s article Opting Out of Subordination: Minors’ Right to Control Their Bodies and Futures, complicates this dichotomy in a tremendously helpful way. It is too simplistic to summarize the question as whether parents win or lose in a disagreement with the state. Sometimes the central conflict is between parents and state, such as if a state mandates a childhood vaccine that the parents wish to opt out of. But sometimes different arrangements of parent, state, and the child in question create different fights. What if parents say that a public school’s curriculum conflicts with their religious beliefs, but the child argues they don’t share their parents’ faith and asks to stay in class? Or if a parent wants their child to undergo medical treatment for a life-threatening condition, but the child wishes to decline the treatment? All of the potential conflicts between parents, child, and the state are not, Professor Rosario Lebrón establishes, created equal. A thumb on the scale in favor of one member of that triad [by whom/what?] is too blunt a solution for a broad range of issues arising in this context.
The article begins with a dichotomy, but not the results-oriented dichotomy with which this review began. Professor Rosario Lebrón first introduces two competing models of parent/child relationships: the parental authority model, under which children are passive subjects whose rights are subordinate to the fully-realized rights of their parents and the state; and the parental responsibility model, which views the state and parents as holding a fiduciary duty to help children develop into active members of civil society. The article then spends some time demonstrating how the Supreme Court has operationalized both models, albeit with a recent and firm swing towards the parental authority approach. For example, Professor Rosario Lebrón contrasts the respect the Supreme Court showed for the speech rights of public school students in Tinker v. Des Moines Independent School District (1969) with the focus on teaching and enforcing social norms in Bethel School District No. 43 v. Fraser. (1986). The Tinker Court wrote that students “may not be regarded as closed-circuit recipients of only that which the State chooses to communicate,” because even though they were minors and in the school context, students still held fundamental rights. By contrast, in the latter case the Court stressed the importance of “teaching students the boundaries of socially appropriate behavior,” even where doing so limited their free speech rights.
Turning to the most recent Supreme Court terms, Professor Rosario Lebrón writes powerfully that the “combined effect of Skrmetti, Mahmoud, Chiles and Bates . . . reduces children’s role from emerging participants in civic life to passive subjects of parental and state power.” (p. 38)
A number of scholars have come to similar conclusions, and Professor Rosario Lebrón traces the work of several with whom he has already been in conversation in previous scholarship. It is in the last two parts of his article that Professor Rosario Lebrón offers his framework that builds upon this previous work and makes the most significant contribution of this article, creating a multistep pathway that more fully recognizes the many conflicts and interests in play. First, Professor Rosario Lebrón proposes a lens of divergence/convergence to identify which participants in a given decision – child, parents, and the state – agree or disagree with each other. Second, he offers three broad categories of the type of question presented. Easy cases are those with relatively firmly established legal rules and facts – one example he gives is disputes about vaccination. Easy cases can be disposed of relatively quickly with broad rules of thumb. (p. 53-54) Not-so-easy cases are in a gray zone where the interests involved are unclear or contested. The state did not adequately explain the link between its policy and its goal, there is not agreement about consequences of the decision for the minor, or there is doubt about whether the activity in question is constitutionally protected. Professor Rosario Lebrón puts both reproductive decisions and gender-affirming care in this category, although others might categorize those topics very differently. Finally, there are hard cases, in which the right asserted is not recognized even for adults, the state’s goal is unclear, or the decision is irreversible – for example, child euthanasia. In these latter two categories, more individualized evaluation is necessary.
Once these first two levels are mapped out – and note that this is a multilevel table rather than a flow chart – Professor Rosario Lebrón adds a third level of analysis: scrutinizing the scientific grounding and the ideological reasons behind the state or parents’ interests. He proposes that courts assess the scientific basis for a given position in a similar way to the evidentiary Daubert standard, whether the evidence is reliable and sufficiently supported. Second, he proposes that a court ask whether prejudice or animus lies behind any party’s position seeking to limit the rights of the child.
Finally, after the conflict has been mapped out and evaluated in the first three levels, Professor Rosario Lebrón would ask any court hearing a case involving a child’s asserted interests to ensure that the voice of that child is heard and considered. Notably, this step takes place even if a court were to conclude that the parents and state were in alignment against the child, that the right asserted was unclear and thus the case was a hard one, and that the scientific grounding behind the parents’ and state’s position was clear and unsullied by animus – in other words, that the child’s argument was completely without merit. Even in that circumstance, Professor Rosario Lebrón argues, our broader concern for children as developing civic actors counsels courts to do their best to make clear that children’s voices will not be dismissed out of hand.
This is demanding theoretical work, so Professor Rosario Lebrón finishes with several examples of his framework in practice. Vaccination is, as he established earlier, a relatively straightforward example: there is a long history of courts holding that the state can require vaccination in some circumstances as an exercise of its police power protecting public health, and the scientific literature is reasonably undisputed. Thus far, a reader might think that Professor Rosario Lebrón’s framework follows a predictable pro-vaccination path. The convergence/divergence analysis, however, adds important nuance. If the state is broadly in support of vaccination, a child wishes to become vaccinated, and only the parents object, then Professor Rosario Lebrón argues the child’s right to consent to their own vaccination should prevail. If both the parents and child don’t want to vaccinate, however, then the child’s right to opt out should track an adult’s ability to do so, barring a specific difference in circumstances justifying the departure. A court might even be confronted with three different views: a state requiring a specific vaccine at age 16, for example; parents who want to vaccinate their child earlier than the mandated age, and a child who wishes to refuse the vaccine altogether. Professor Rosario Lebrón outlines what a court should look to in its analysis, but concludes that given the difficulty of balancing interests, a court could reasonably side with any of the three parties.
Professor Rosario Lebrón begins his article with the rights of LGBTQ+ youth, and the article finishes by tracing a few versions of disputes centering on LGBTQ+ children through his framework: regulation of conversion therapy, reproductive decisions, and gender-affirming care. The article offers a brief summary of how he believes such disputes should be resolved, but acknowledges that particularly in the context of gender-affirming care, the scientific consensus has been a moving target (or perhaps more specifically, a target deliberately moved by a campaign of the production of scientific literature). This means that Professor Rosario Lebrón does not give a final substantive answer to the numerous questions he poses. This is not a bug, but a feature: his project is not to resolve a handful of issues, but rather to give a methodology for all possible assertions of children’s rights. It is an ambitious project, but one that the article does elegantly, inviting further applications and development in the future.
