Tenth Circuit: Parents Do Not Have Right to Override Ban on Gender Transitioning of Minors

The Tenth Circuit handed down a notable opinion this week in Poe v. Drummond, upholding Oklahoma’s law prohibiting gender transition procedures for anyone under eighteen. The opinion by Judge Joel Carson (joined by Judges Harris Hartz and Gregory Phillips) concluded that parental rights do not trump a state’s determination of what are safe treatments for minor patients.

Opinion polls show that most citizens favor a ban on such transitioning for minors.  Other polling shows that the majority also views the transitioning of minors as “morally wrong.”

Various states have passed laws to ban the practice, and various foreign nations have imposed similar bans.

In response, advocacy groups have sought to use parental rights challenges to strike down the law. It is an ironic effort since some of these groups oppose parental rights in areas like abortions for minors without parental notice.

I have been a strong advocate for parental rights for decades. However, such rights are not absolute. The government has a core responsibility in barring practices that may be harmful for minors when based on objective, scientific evidence.

The Court ruled:

Parents have the right “to make decisions concerning the care, custody, and control of their children,” which includes “to some extent, a more specific right to make decisions about the child’s medical care,” But we and the Supreme Court have held that parents do not have an absolute “right to direct a child’s medical care.” …

We … have consistently held that individuals do not have an affirmative right to specific medical treatments the government reasonably prohibits. We have held that although patients have a fundamental right to refuse treatment, the “selection of a particular treatment … is within the area of governmental interest in protecting public health.” Thus, the government has the “authority to limit the patient’s choice of medication,” whether the patient is an adult or a child.

The panel found that to rule otherwise would allow parents to “veto legislative and regulatory polices about drugs and surgeries permitted for children.”

The Supreme Court has previously upheld, in Washington v. Glucksberg (1997), a Washington state law banning assisted suicide and found that such a right was not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment.

In United States v. Skrmetti (2025), the Supreme Court upheld Tennessee’s ban on gender-affirming care for minors after a challenge under the Equal Protection Clause. Chief Justice John Roberts found that the law did not discriminate based on sex or transgender status, but instead on age and medical need.

The Tenth Circuit is also at the center of a pending case to be heard in the October Term with potentially sweeping implications. In Chiles v. Salazar, the Tenth Circuit upheld a Colorado law banning conversion therapy for minors, finding that it did not violate free speech protections.

I believe that the Tenth Circuit is correct in rejecting the parental rights claim in Poe. However, I disagree with the ruling in Chiles. Colorado’s ban on counseling, in my view, is excessive and violates the First Amendment. These Tenth Circuit cases could prove critical in bringing greater clarity to this area in the coming year.

Notably, yesterday, former House Speaker Nancy Pelosi reaffirmed her commitment to mandate gender transitioning procedures on the federal level if the Democrats retake power in Congress.