Parental Rights and Their Limits

In America, parental rights protect the right of mothers and fathers to use legitimate discretion in raising their children. The government does not allocate parental rights; it recognizes and protects them as reflecting preexisting, nonpolitical relationships between parents and children. An alternative system, based around children’s rights, is common in much of the Western world; under this model, the state determines what is in the best interests of the child.

Legitimate governments protect parental rights so parents can fulfill their duties to raise children to honorable, independent adulthood. But there are limits. Parents who abuse their rights or neglect their duties may lose their children or be subject to state oversight. States may ban certain kinds of parental punishments (for example, not feeding one’s children or beating them up). 

Conservatives have recently been stressing parental rights as a means of protecting children from gender ideology, such as in Florida’s Parental Rights in Education Bill—what its critics call the “Don’t Say Gay” bill. Emphasizing parental rights is often necessary, but conservatives should be aware that parental rights alone are not enough when it comes to protecting children; we must also appeal to a proper understanding of parental duties, one that is ordered toward the good.

The transgender movement strains the parental rights framework. In some cases, appeals to parental rights function as a limit on practices shaped by gender ideology that are harmful to children. For instance, Florida’s Parental Rights in Education Bill appeals to parental rights to limit instruction on sexual orientation or gender identity in public schools. The bill states that such instruction “may not occur” in kindergarten through third grade in public schools. In this case, the bill’s acknowledgement of parental rights carves out a sphere of parental discretion on sexual identity (parents can, after all, still teach their children gender ideology in their homes, if they wish) within a broad grant of power to the state on other curricular matters. Parents reclaiming rights in such circumstances has a Tea Party whiff to it. 

Florida’s bill is a good start, but enforcement of this sort of parental rights law will always be difficult since it must be enforced within broader institutions dedicated to opposite principles and ideology. Parents can expect no enforcement help from school administrators, state education departments, local lawyers, or any other regime allies. 

America’s modern public school system is based on the children’s rights model, where state experts claim to know what is best for children in the coming social order. Horace Mann, a founder of the American public school system, stated this with admirable clarity: “We who are engaged in the sacred cause of education are entitled to look upon all parents as having given hostages to our cause.” John Dewey shared the sentiment a generation later, seeing schools as “active and militant participants in creation of a new social order.” Failed Virginia gubernatorial candidate Terry McAuliffe confirmed this hostility to parental rights when he told voters: “I don’t think parents should be telling schools what they should teach.”

Florida’s bill is one example of a case when appeals to parental rights help protect children from the damaging effects of gender ideology. But in other cases, parental rights have been invoked to protect gender ideology and prevent states from outlawing harmful transgender procedures for children. Idaho’s House of Representatives recently passed a bill prohibiting gender reassignment surgeries and treatments for minors. Such treatments, the bill's sponsors hold, are abusive, and thus the state could legitimately limit the exercise of parental rights in this case.

The Republican State Senate, however, killed the bill in the name of parents’ rights. Those senators—who oppose child abuse in other settings—don’t think gender reassignment treatments are abusive, and should therefore be available to everyone. Idaho’s Senate offered reasons similar to those Republican Asa Hutchinson, governor of Arkansas, offered in 2021. He argued that bans on chemical castration of young boys represented “vast government overreach,” and he opposed such bans in the name of parental rights.

The Parental Rights in Education Bill is a step in the right direction, but merely appealing to parental rights is not enough, as the recent debate in Idaho demonstrates. Instead, we need to appeal to parental duties, and a right understanding of what being a parent is all about. The core responsibilities of a parent are to protect and nurture, counsel and instruct—especially during the challenging and confusing years of adolescence. Damaging young bodies irreparably through hormone therapy or transition surgery is a violation of these responsibilities and duties. Destroying young children’s fertility through harmful gender “therapies” is a kind of abuse, and is always wrong, regardless of whether it is done with parental consent or not.

Real progress requires exorcising those enamored of the prevailing gender ideology from the public schools. But those who would defend parental rights in today’s context must always be ready to make moral judgments. There will be times when protecting children requires limiting states’ rights to make decisions for parents, and other times when it means limiting parental rights in the name of parental duties.

Scott Yenor is a Washington Fellow of the Claremont Institute’s Center for the American Way of Life and a professor of political science at Boise State University.

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