You may have wondered what Ron DeSantis is up to when he’s not mailing migrants to Martha’s Vineyard or giving Disney lawyers secondhand embarrassment over how bad his legal counsel is. He’s not just catching up on One Piece like the rest of us. No, he’s actively trying to make it legal to tear children from their family’s homes.
Florida Governor Ron DeSantis signed a horrifying bill Wednesday that will let the state take transgender minors away from their families if they are receiving gender-affirming care.
The new law will allow the state to take custody of a child if they have been “subjected to or [are] threatened with being subjected to” gender-affirming care, which includes puberty blockers and hormone replacement therapy. Florida courts could modify custody agreements from a different state if the minor is likely to receive gender-affirming care in that second state. The text refers to gender-affirming care as “sex-reassignment prescriptions or procedures” and qualifies this care as a form of “physical harm.”
Medical facilities would have to give the state Department of Health a signed attestation that they neither provide gender-affirming care to any patients under the age of 18 nor refer people to providers that do. Their medical license renewal is contingent upon sending in this attestation.
This, much like DeSantis’s failed attempts to own Disney, is probably just an attempt to curry favor with the alt-right talking base. They’re big on “protecting the children,” despite the readily apparent problems that stealing kids from their parents brings about.
I expect that the DOJ will be all over this in a short amount of time. They argued a Tennessee law that banned healthcare access to trans youth violated the 14th Amendment’s equal protection clause — this bill likely does the same. And, to double down on how much of an up yours to the 14th it is, it also violates the due process clause. Probably. Hopefully. At least a prior configuration of our Supreme Court would make one believe so:
The U.S. Supreme Court has repeatedly held that parents have a fundamental right to make decisions as to the companionship, care, custody, and management of their children, which right is a protected liberty interest under the due process clause of the Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054, 2060 (2000). As a result, there can be no doubt that the Fourteenth Amendment is implicated whenever the government seeks to separate a parent from his or her child, and due-process principles generally require the right to notice and a hearing before children are separated from their parents.
Really, let’s take the time to think about the process that would warrant snatching someone’s kids away. How does one verify that a child is “threatened with being subjected to [insert boogeyman health care options here]”? Does a police alarm get raised if Birdo shows up for family game night? Or is it merely when a kid has a parent or older family member who has had gender-affirming care? These are questions you’d expect answers for from the “keep children with their parents” party:
If the alt-right really cared about keeping children with their parents and preventing the government from reaching its hands into the home unnecessarily, their blathering about what’s best for kids would look a lot more like what the Assistant AG of the DOJ’s Civil Rights division had to say:
“No person should be denied access to necessary medical care just because of their transgender status…[t]he right to consider your health and medically-approved treatment options with your family and doctors is a right that everyone should have, including transgender children, who are especially vulnerable to serious risks of depression, anxiety and suicide. The Civil Rights Division of the Justice Department will continue to aggressively challenge all forms of discrimination and unlawful barriers faced by the LGBTQI+ community.”
There’s no promise that this set of robes won’t pull some argument about how the 6th page of a pamphlet penned by one of Thomas Jefferson’s pseudonyms actually means that trans folks get the lowest level of scrutiny possible.
Even if we put aside the whole likely unconstitutionality of this thing, there is something worth remembering: This is Florida. Kids get shot there over road rage:
Do you seriously think — whatever gender identity is involved — people won’t get shot if they barge in to some Floridian’s home trying to seize their kids?
Surprise surprise, this isn’t the only law directly targeting a class:
One of the criticisms of the bathroom bills and “Don’t Say Gay” laws was that it wasn’t really about regulating who gets to pee where or to prevent Lady Gaga from corrupting toddlers. Let’s be frank — if you’ve ever swam in a public swimming pool, you’ve definitely been in a gender neutral bathroom. The purpose was to normalize the regulation of a minority population. And things are getting bad. Florida has a rough enough reputation as it is between the “Florida Man” headlines and their governor getting his ass beat by a mouse with a nasally voice. Do they really need to add on the realization that they voted for a guy who thinks forcible child transfer is fair game?
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at firstname.lastname@example.org and by tweet at @WritesForRent.