A. Case Law
When looking at the case law cumulatively, it is clear that there are no parental or state
interests sufficient enough to outweigh the youth’s right to equal respect when determining
custody.127 The following cases describe ideas of liberty and children’s rights, as well as some
limitations to those rights.
In Meyer v. Nebraska, the Supreme Court ruled that the term ‘liberty’ in the Due Process
Clause of the Fourteenth Amendment refers to more than just “freedom from bodily restraint”;
instead, it includes other interests such as the right to marry, privacy, and other rights typically
associated with the Bill of Rights.128 “[L]iberty may not be interfered with, under the guise of
protecting the public interest, by legislative action which is arbitrary or without reasonable relation
to some purpose within the competency of the state to effect.”129 This is especially important in
the context of making treatment decisions for transgender children—because since there is still a
percentage of the population that does not accept or support the transgender community, some
argue that it would be detrimental for a child to be allowed to express gender non-conforming
behavior due to potential negative social implications.
In what has been described as the most important children’s right’s case, the Court held
that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”130 Before this
case, children who committed criminal offenses were denied due process rights in the American
juvenile justice system.131 This failure to afford these children their due process rights severely
diminished their capacity for liberty. The Court ruled in that case that a youth’s rights may not be
weighed against society’s possible negative reaction to the youth’s chosen gender
identity/expression.132 “A core purpose of the Fourteenth Amendment was to do away with all
governmentally imposed discrimination based on race.”133 The Constitution may be unable to
control the existence of prejudices, but it is unable to tolerate them.134 Some of the arguments
against using the supportive approach for youth with gender dysphoria rely heavily on the social
implications of expressing gender nonconformity, but failure to support a child on these grounds
unjustly strips that child of their liberty. Kathryn and Jeremy Mathis originally allowed Coy to
express her gender identity, but only in their home, fearing their neighbors would frown upon such
behavior.135 Eventually, they realized that this approach was causing more harm than good. The
couple thought “If we give [Coy] a safe space to be who [she] is, that’s our way of being
supportive… [b]ut we were really sending the opposite message: ‘It’s not safe, but we’ll give you
a place to hide.”136 With this realization in mind, Kathryn and Jeremy decided to support Coy’s
decision all the way, regardless of what others might think.137
127 Hulstein, supra note 68, at 189.
128 Id. at 182.
129 Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923).
130 In re Gault, 387 U.S. 1, 13 (1967).
131 Tobin, supra note 14, at 604.
132 Hulstein, supra note 68, at 192.
133 Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (citing Strauder v. West Virginia, 100 U.S. 303, 307–08, 310 (1880))
(Strauder was abrogated because it upheld a state’s right to bar women or classes from jury selection; however, its
holding that it is unconstitutional to categorically exclude African American men from jury duty, on the grounds that
this practice violates the Equal Protection clause, still remains).