Lest the reader think these issues are “just political” realize that in the Commonwealth of Pennsylvania there are 40,000 custody cases brought each year and 40,000 processed. In those cases, judges and hearing officers are asked to decide lots of contentious and difficult problems related to how to govern their children in a world where parents disagree. In making those decisions, courts have to be guided by laws and policies enacted by our elected representatives. We have recently written about cases where parents seemed to have thought a handgun was a suitable Christmas gift and whether a mom’s decision to supplement income by offering sexual content on the internet should play a role in deciding how much custodial time she spends with her kid.
Many readers may just be recovering from our last post related to what role government should play in deciding the sexual orientation of your child. Again, the debate here both at home and in state assemblies across America is whether you have a right to support or “promote” your child’s change in sexual orientation. I use the words “promote” in quotes because I sincerely doubt that many parents in America who give birth or adopt a boy or a girl make it part of their “mission” as parents to see their boy become a girl or a girl become a boy. Whatever you think of transsexual migration, not many parents have this on their list of aspirations for their child. And as we noted in the blog comparing Indiana’s recent case where parents wanted to stop any transition and Idaho’s where the parents supported what they saw as their child’s valid quest, this is an issue that almost all Americans want to keep private.
Unfortunately, the debate over what decisions are the province of a family and what are subject to government regulation seems to be headed toward more controversy and not away from it. The bills we write about are from Alabama and Florida but they each relate to culture wars underway in the mid-Atlantic as well. This writer lives in a school district outside Philadelphia that has been rocked by controversy over transgender bathrooms. Districts throughout the Commonwealth have recently struggled over what books are found in libraries and what is taught in schools.
The Alabama bill wades squarely into the gender definition issue. “There are only two sexes, and every individual is either male or female.” It defines sex based on reproductive anatomy and says schools and local governments can establish single-sex spaces, such as bathrooms, based on those definitions. Children are to be defined based upon their gender at birth. In 2022 Alabama made it a felony to provide gender affirming care to a minor child. Last year, the 11th Circuit Court of Appeals affirmed that law as constitutional. Florida, Oklahoma, Idaho and North Dakota also have criminalized such therapies. Eknes-Tucker v. Alabama, 80 F.4th 205 (11th Cir) https://media.ca11.uscourts.gov/opinions/pub/files/202211707.pdf
Meanwhile, Florida has adopted regulations about what media children can access via the internet. The new rules in Florida, passed on February 22, would require social networks to both prevent people under 16 from signing up for accounts and terminate accounts that a platform knew or believed belonged to underage users. It would apply to apps and sites based on their features and appears to be targeting Facebook, Instagram, Snapchat, TikTok and YouTube. Parental consent is immaterial, which makes this proposed law the strongest in the country so far.
Many readers and this writer harbor conflicting views on these subjects. We have noted that few if any parents relish helping a child navigate gender identity issues. Meanwhile, almost every parent we encounter harbors serious concerns about what their children are accessing on the internet. The American Academy of Child and Adolescent Psychiatry found that 8-12 year olds were 6 hours a day on the internet and teenagers were hitting close to 9 hours. That was before the pandemic and home schooling although more recent data seem to be consistent with the AACAP study in February 2020.
So perhaps more regulation is needed. But who should be doing the regulation when it comes to your children? Many parents may be perfectly content to tell their kids that they can’t access TikTok because legislators in Tallahassee or Harrisburg won’t allow it. Perhaps it would be easier to tell a child who was experiencing sexual identity issues that you would like to help but can’t because it might mean prison for someone. And perhaps, life is easier if you tell your teenager that you might let her read “The Color Purple”, “To Kill a Mockingbird” or Harry Potter but the school district says it’s wrong. Whichever side of the political spectrum you live on, are you satisfied to let the General Assembly majority decide for you?
The larger point is that we are headed in some strange new places. Or perhaps some old places if you recall Schechter Poultry v. United States. 295 U.S. 495 (1935). Until the early 1940s the U.S. Supreme Court interpreted the commerce clause very narrowly and heralded the importance of letting states decide how commerce should be regulated. That trend reversed in cases like U.S. v. Dairy Lumber Co. (1941) and U.S. v. Wrightwood Dairy Co. (1942) such that by the 1960s there were very few businesses which could claim to be exempt from national regulation under the commerce clause. In the last few years conservatives on the Supreme Court have reversed engines and suggested that these are matters for the states to regulate. Dobbs v. Jackson v. Jackson Women’s Health is emblematic of that change from national freedom to state regulation.
The challenge here is that today the plane and the automobile have made this country a place where we do business in lots of places. Until 2022 you could pretty much secure an abortion in any state. Today 14 states ban almost any form of abortion. Fifteen states are entertaining legislation regulating fetal rights. So today, the legal landscape is mottled with laws that may or may not affect you. If you have embryos frozen in Alabama you probably should consult with counsel before doing anything with them regardless of what state you live in because your embryos are Alabama’s children. You may live in a state which has no restrictions on trans-gender therapy for your child. But if you and the child go to vacation in Orlando, you may want to ask whether your administration of gender medications while there is a violation of Florida law. But how would they know what you are doing? Unfortunately, custody disputes and talkative family members who disapprove of your choices may reveal what you would otherwise think private.
Advocates for these laws indicate that the reproductive bills are intended to promote the interests of women and families. Whether “encouragement” or “interference” labels fit depends upon the viewpoint of the beholder. And, unfortunately, in a world where parents in a custody dispute can and do fight over any and everything, you may be awakened to learn that your ex is asking a court to decide whether your kid should be allowed to peruse “Catcher in the Rye.”
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