This holding finds support in other cases: in Watson v. Memphis, the Court held that
“constitutional rights may not be denied simply because of hostility to their assertion or
exercise.”138 Professional organizations such as the American Psychological Association have also
echoed this holding by releasing statements promoting education of the community and tolerance
above blind adherence to social prejudice.139 The prejudices of people should not inhibit a
transgender child to express the gendered behaviors of their choice, and thus these prejudices
should not be weighed in the court’s decision-making process.
Troxel v. Granville holds that parents have substantive due process rights concerning how
their children are raised, including the right to refuse certain medical care, instruct the child in
religion, and exercise control over the child’s education.140 “[I]t cannot be doubted that the Due
Process Clause of the Fourteenth Amendment protects the fundamental rights of parents to make
decisions concerning the care, custody, and control of their children.”141
States usually rely on a parent’s judgment, working under the presumption that the parent
has the child’s best interests in mind.142 These rights, however, are limited, and in situations where
that presumption does not apply, the state may exercise parens patriae and decide for itself what
is in the best interests of the child.143 When parents act with their own best interests in mind and
in the process trample upon their child’s liberty, it is the state’s responsibility to step in and remedy
the situation. In the context of custody cases where parents disagree on the treatment of their
transgender child, this implies that courts, acting in the child’s best interests, should reject the non-supportive parent, making decisions based on their own personal biases, in favor of the supportive
The Lawrence v. Texas holding offers the idea that liberty presumes autonomy of self that
includes freedom of thought, belief, expression, and certain intimate conduct.144 “Equality of
treatment and the due process right to demand respect for conduct protected by the substantive
guarantee of liberty are linked in important respects, and a decision on the latter point advances
In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court stated:
These matters, involving the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the heart of liberty is the right
to define one’s own concept of existence, of meaning, of the universe, and of the
mystery of human life. Beliefs about these matters could not define the attributes
of personhood were they formed under the compulsion of the state.146
The interest protected in Lawrence was the ability to define the concept of one’s existence, which
is an interest with the potential for profound implications for both minor and adult transgender
138 Watson v. Memphis, 373 U.S. 526, 535 (1963).
139 David K. Flaks, Gay and Lesbian Families: Judicial Assumptions, Scientific Realities, 3 WM. & MARY BILL RTS.
J. 345, 354 (1994).
140 Hulstein, supra note 68, at 193.
141 Troxel v. Granville, 530 U.S. 57, 66 (2000).