Pending Certiorari Petition on Parents’ Standing to Challenge Laws Interfering with Parent-Child Relationship

Pending for consideration at the Supreme Court’s conference on June 18 is a certiorari petition challenging laws in the state of Washington that refer a gender-confused runaway child for “gender-affirming treatment” without parental notice or consent and that keep parents uninformed as to their child’s location and condition. The petition arises out of a case in which parents of gender-confused children (including one who had run away before) invoked their rights based on substantive and procedural due process, free speech and free exercise of religion.

A Ninth Circuit panel ruled (in International Partners for Ethical Care v. Ferguson, see petition appendix 1a-27a) that the plaintiff parents had “not pled current or future injuries sufficient to confer Article III standing.” When the Ninth Circuit denied rehearing en banc, Judge Lawrence VanDyke and Judge Eric Tung each wrote dissents objecting to the panel’s reasoning. (See petition appendix 32a-65a.) Regarding the current injury to parents, Judge VanDyke observed:

The parents in this case have plausibly alleged that they cannot counsel their gender-confused children in the way they see fit, lest those children, prompted by Washington’s novel law, leave home for a state-run shelter that will help them undergo transition procedures in secret. Washington’s legal regime therefore chills the rights of these parents to direct the care and upbringing of their children, strikes at the heart of what the parental right protects, and constitutes a current and ongoing invasion of the parents’ constitutional rights.

As for substantial risk of future injury, Judge Tung wrote that “the law appears designed to … prevent parents from reuniting with their child (unless they ‘affirm’ the child’s gender identification) and to clear the path of obstacles for the child to receive ‘gender-affirming’ treatment.” (Emphasis added.)

In their certiorari petition, the parents argue that the panel’s ruling conflicts with multiple precedents of the Court and of other circuits. As the parents point out, Justices Alito, Thomas, and Gorsuch have recently expressed their “concern that some federal courts are tempted to avoid confronting a particularly contentious constitutional question: whether [the government] violates parents’ fundamental rights when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.” (Cleaned up.) These justices stated that whether parents have standing in that situation presents a question of “great and growing national importance.”