I applaud the Supreme Court for agreeing last week to consider a Tennessee law that bans certain medical treatments for transgender minors, because such decisions should be left to the parents, not lawmakers.

Tennessee, like about 25 other states that have enacted similar measures, prohibiting three types of transgender medical care for minors—puberty blockers, cross-sex hormones and gender-transition surgeries. The Supreme Court will hear the case, United States v. Skrmetti, in its next term, which typically starts on the first Monday in October, and decide the constitutionality of such a ban.

Some believe the treatments are unproven and carry risks. On June 26, the Biden administration issued a statement to the New York Times that it opposes gender-affirming surgery for minors. 

It should be noted also that the Biden administration has said that Tennessee’s prohibition is not for safety reasons—pointing out that the “same treatments are unrestricted if they are prescribed for any other purpose.” The administration thus is arguing that Tennessee’s ban violates the 14th Amendment because it “frames that prohibition in explicitly sex-based terms.”

I am not a medical professional so I do not have an opinion on the medical merits of transgender care. However, when it comes to making decisions for children, it seems to me that should be left to the parents and not legislators. 

I am not for or against any choices parents make in this regard, but I think there are important things for parents, especially divorced parents, to be aware of and consider.

First, it should be noted that parents who share custody often share decision-making responsibilities, which usually include decisions concerning medical procedures—including common transgender treatments like hormone therapies. If divorced parents share medical decision-making responsibilities, one cannot decide to allow or prevent their child to transition without the other parent agreeing or without court intervention. 

Whatever your personal beliefs, if they do not align with your ex’s, the child likely cannot easily get any treatment in this area, which would favor the parent who is against it. However, if you are a divorced parent who feels that it is vital that your child transition, mediation with a trained professional can be an option. Second, although mediation can present a less adversarial environment, mediators do not generally give legal advice to either party. 

Third, because of the vital importance of the issue—we are talking about medical procedures and your child— you may want to consult a lawyer and get a decision from a judge. In this type of situation, the court may appoint a guardian ad litem (an attorney who represents the child’s interests) to try to determine what the child needs, or obtain testimony from medical and psychological professionals. While this may be the best course of action, it can also be the most expensive. 

I’m sure disputes between parents over transgender and non-binary children will become more common in the coming months and years, and it will be vital to keep abreast of what legal precedents are set. 

Transgender care has become a hot topic across the country, with about half of all states passing laws to restrict access to gender-affirming care for trans and nonbinary people, even though these people account for a tiny sliver of the general population. According to the Williams Institute at UCLA, as of June 2022, about 0.52% of the entire adult American population (1.3 million) identifies as transgender. For those under 18, the number is slightly higher, at 1.43%, or about 300,000. The numbers for adults have remained steady since 2016, the last time the Williams Institute gathered data, but the institute estimates current numbers of kids between the ages of 13-17 have doubled, perhaps because of better acceptance by society.

Some may view the increase in the number of children identifying as trans or nonbinary as alarming and part of a fad, and thus this may be some of the motivation behind some of the efforts of outlawing gender-affirming care for trans and nonbinary minors.

It is hard to predict what the Supreme Court will do, but one thing seems certain: whichever side of the issue you’re on, the parents, and not the lawmakers, should be making these types of decisions for kids.

Attorney Jeffery M. Leving is the recipient of President Biden’s Presidential Lifetime Achievement Award. 

Leving, who has dedicated his career to safeguarding children and reuniting them with their fathers, has written three acclaimed books: “Fathers’ Rights,” “Divorce Wars” and “How to be a Good Divorced Dad.”