Gender identity ideology has infected the nation like a cancer, and those standing against it must radiate every argument that is being used to advance its spread. One such argument (that is even gaining traction from some on the right) is that parents have a constitutional right to transition their children, including obtaining medical treatments to facilitate the transition. This argument has been adopted by at least one federal judge and is a pillar of the ACLU’s legal advocacy. On June 6, Judge Robert Hinkle of the Northern District of Florida ruled that Florida’s law prohibiting doctors from prescribing puberty blockers and cross-sex hormones to minors is unconstitutional, at least as applied to the plaintiffs in the lawsuit. Judge Hinkle cited parental rights as one of the grounds for striking down the law. Although he acknowledged that parents do not have a right to give their children medical treatments that are “unsafe,” he still ruled that the parents were likely to win “on their parental-rights claim” because there is no “rational basis” on which Florida could categorically ban these drugs. (READ MORE: No, Judge Hinkle, Gender Identity Is Not Real, Nor Legally Relevant)

In a recent lawsuit challenging an Indiana law that prohibits the use of puberty blockers and hormone therapy treatments for minors, among other things, the ACLU argued that the law was unconstitutional because it infringed parental rights. Indiana “has intruded on the fundamental rights of parents to care for their minor children by consenting to their receipt of doctor-recommended and necessary care and treatment,” claimed the ACLU, and “[i]t is vast government overreach into the decisionmaking of parents.”

Before attacking Judge Hinkle and the ACLU’s legal analysis on this point, it’s worth noting what he and the ACLU do get right. In the American constitutional order, parents do indeed have the fundamental, natural law right, recognized by the Fourteenth Amendment, to direct their children’s upbringing, moral formation, and overall education. This means that parents have the right to homeschool their children and prevent the state from indoctrinating their children in gender identity ideology and socially transitioning them behind their backs, among many other things. The right also includes making medical decisions for their children.

But never in our country’s history has the right of parents to direct their children’s upbringing included a right to physically harm or abuse them. In his famed Commentaries on the Laws of England, William Blackstone, when discussing the legal rights and duties of the parent-child relationship, contrasted Roman Law with the English Common Law. Roman Law, Blackstone noted, “gave the father a power of life and death over his children.” In other words, Roman Law granted fathers absolute authority over their children, including the power to physically abuse or even kill them. Not so in common law. The power of a father over his children in common law “was much more moderate” and extended to reasonable, physical discipline necessary to “keep the child in order and obedience.”

The line between physical abuse and “reasonable” discipline might be legitimately debated across states, but what is beyond debate is that parental rights do not encompass the right to physically abuse one’s children. But who gets to define what constitutes physical abuse? This is the right of the people — acting through their elected representatives — and they certainly can define physical abuse to include giving children harmful medical treatments.

And this is where Judge Hinkle and the ACLU fly off the legal reservation — but for different reasons. Judge Hinkle actually acknowledged that parents don’t generally have the right to give their children “unsafe” medical treatments. Yet so colored is he by gender identity ideology — so much that he declared in his opinion that “Gender identity is real” — that he summarily dismissed the medical risks associated with prescribing puberty blockers and cross-sex hormones to minors, stating that “[t]he great weight of medical authority supports these treatments.” This is not true — and nations around the world that are actually “following the science” are finding the exact opposite. 

The ACLU is wrong for a different reason. Unlike Judge Hinkle, the ACLU seems to recognize no limits on the right of parents to make “medical” decisions for their children. There are limits, and states have the right to acknowledge the serious medical risks associated with puberty blockers and cross-sex hormones and prohibit them accordingly. Indeed, does a parent who believes in mysticism have a right to give his children hallucinogenic drugs to “help them” escape the false reality of this material world simply because some doctor or counselor thought it might be a good idea? 

Moreover, it’s important to note what Indiana and Florida have not done: attempt to prohibit parents from socially transitioning their children. If Indiana, Florida, or another state attempted to prohibit parents from socially transitioning their children without the use of drugs, that would be a more difficult case against a parental rights challenge, and maybe then the ACLU’s reasoning would carry the day. But that is not this case. Here, two sovereign states have decided to prohibit specific drugs — drugs that have documented, long-term medical risks that are being seriously curtailed in several European nations right now. Florida and Indiana have every right to do that, and the guise of parental rights is no impediment to Florida and Indiana’s taking action to protect vulnerable children. 

One facet of a just society is how it cares for its least vulnerable members — including those who can’t defend themselves. Children fall into this category. Instead of protecting and nurturing children, many states are using them as pawns in a giant worldview experiment that seeks to erase what has been a bedrock of humanity across millennia — the unchanging and fundamental reality of biological sex. If California and parents residing there want to enroll their children in this grand experiment, so be it. But Florida and Indiana have sought to protect children from the devastating consequences of gender identity ideology — and they have done so consistently with constitutional limits. Parents do not have a right to physically harm or abuse their children, and any judge, lawyer, or politician who says otherwise is dead wrong. 

Ernie Walton is an Assistant Professor at Regent University School of Law in Virginia Beach, Virginia.