persons.147 “LGBT youth, like straight and cisgender youth, possess the substantive due process
rights protected by Lawrence: the right to their sexual orientation or gender identity/expression
and the right to be free from state action primarily expressing animus against their sexual
orientation or gender identity/expression.”148 Ultimately, the Lawrence court ruled that even if
beliefs regarding the concept of one’s own existence were formed by the State, they would be
insufficient to define the characteristics of being a person.149 In protecting a child’s substantive
due process rights, the State should not be allowed to enforce their own preferences for gender
identity and expression upon children. It follows, then, that when the court placing gender
nonconforming children with a non-supportive parent rather than their supportive parent, the court
is, essentially, forcing that child to live according to the State’s preferences for gender identity and
In State v. Limon, the substantive due process and equal protection analysis were linked
together150 and the court recognized and affirmed (after a lengthy process of appeals and remands)
that the State has broad powers to protect minors.151 This decision by the Kansas Supreme Court
was heavily influenced by multiple cases, implying the substantive due process rights articulated
in Lawrence applied to this case.152 Limon is the most authoritative case regarding a minor’s
substantive due process rights, despite not being binding on other states.153
To support their holding, the Limon court referred to the ruling in Carey v. Population
Services International, which held that, “in the area of sexual mores, as in other areas, the scope
of permissible state regulation is broader as to minors than as to adults.”154 “[T]he right to equal
protection of those laws is offended when legal classifications are drawn for the purpose of
invoking moral disapproval with ‘the purpose of disadvantaging the group burdened by the
LGBT youth have their substantive due process rights protected by Lawrence, just as their
straight and cisgender peers do: the right to their gender identity and expression, the right to
determining their own sexual orientation, and the freedom from the State acting hostile towards
their gender identity, gender expression, and sexual orientation.
156 When the courts decide to give
custody of a gender nonconforming child to a non-supportive parent, they are in essence acting
hostile towards a child’s gender identity and/or expression.
In summary, Meyer held that liberty is more than just freedom from bodily restraint157 and
extended that liberty to minors in In re Gault when the Court held that Bill of Rights and Fourteenth
Amendment are extended to children.
158 While some arguments rely on the potential for social
disapproval as a reason to reject a youth’s wishes, Palmore’s ruling demonstrated that a youth’s
orientation should not be weighed against society’s potential for condemnation of the youth’s life
choices in court.
159 Troxel defined and clarified the boundaries of parents’ substantive due process
147 Hulstein, supra note 68, at 186.
148 Id. at 188. Cisgender refers to a person who has a gender identity aligning to the one assigned at birth.
149 Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851).