Iowa Republicans bolster case against own anti-trans law

In revised education bill

From the March 5, 2023 protest against anti-trans bills outside the Iowa state capitol (photo by Laura Belin)

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As Iowa Republican lawmakers advanced Governor Kim Reynolds' wide-ranging education bill this month, they expanded on language spelling out parents' right to make decisions affecting their own child.

The latest version of the bill inadvertently admits that Iowa's new law banning gender-affirming care for minors violates a "fundamental, constitutionally protected right."

When Reynolds introduced what her staff have called a "parental empowerment bill," one section proposed adding a new Iowa Code section about the rights of parents and guardians. Key paragraph from page 11 of Senate Study Bill 1145:

A parent or guardian bears the ultimate responsibility, and has the constitutionally protected right, to make decisions affecting the parent's or guardian's minor child, including decisions related to the minor child's medical care, moral upbringing, religious upbringing, residence, education, and extracurricular activities.

Republicans on the Senate Education Committee approved the governor's bill, renumbered Senate File 496, in early March. By the time leaders brought it to the floor on March 22, the House and Senate had approved a ban on gender-affirming care, such as puberty blockers, cross-sex hormones, and surgery, for Iowans under age 18. That bill (Senate File 538) was awaiting Reynolds' signature and had no exemption for health care approved by parents.

So a GOP amendment offered during Iowa Senate debate changed that section of the bill to read as follows (I've put the new wording in bold):

Subject to section 147.164, if enacted by 2023 Iowa Acts, Senate File 538, a parent or guardian bears the ultimate responsibility, and has the fundamental, constitutionally protected right, to make decisions affecting the parent's or guardian's minor child, including decisions related to the minor child's medical care, moral upbringing, religious upbringing, residence, education, and extracurricular activities. Any and all restrictions of this right shall be subject to strict scrutiny.

During Iowa Senate debate on March 22, Democratic State Senator Cindy Winckler highlighted the absurdity of this section.

After reading out the passage, Winckler noted that it "sounds right" to let parents decide what's in the best interest of their child. But the bill provides "one and only one exception": "This amendment gives every other family and every other child in this state the right that we will not interfere in their medical decisions—except our transgender youth and their family."

"I don't know what we're doing," Winckler went on. "How can you give, make such a statement about parental rights, and then take it away? How can you do that? Why would you do that?"

Republican State Senator Ken Rozenboom noted while floor managing the revised bill that several appellate court rulings have affirmed parental rights to direct their child's education. For instance, in the 1925 case known as Pierce v. Society of Sisters, the U.S. Supreme Court held that a 1922 Oregon law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of the children under their control."

The Iowa Supreme Court cited that case in a 2010 decision, which explained that any infringement of this "fundamental parental right" is subject to strict scrutiny, Rozenboom said. That is the highest bar for the government to clear when defending a statute or ordinance. Under a strict scrutiny analysis, the state must show the challenged policy "is narrowly tailored to serve a compelling government interest."

House Republicans substantially changed Senate File 496 during a March 30 meeting of the Education Committee, but their amendment (which combined elements of several bills the House had already approved) kept the Senate's language on parental rights intact. The only change in that paragraph—from "if" to "as"—reflected the fact that Reynolds had signed Senate File 538. From Division X on page 37 of the House Republican amendment:

Subject to section 147.164, as enacted by 2023 Iowa Acts, Senate File 538, a parent or guardian bears the ultimate responsibility, and has the fundamental, constitutionally protected right, to make decisions affecting the parent's or guardian's minor child, including decisions related to the minor child's medical care, moral upbringing, religious upbringing, residence, education, and extracurricular activities. Any and all restrictions of this right shall be subject to strict scrutiny.

GOP lawmakers admit their own law is subject to strict scrutiny. And as Bleeding Heartland discussed in more detail here, Senate File 538 will be difficult to defend in court.

The law clearly restricts parents' right to make decisions about their own minor child's medical care, even though every mainstream medical organization has endorsed gender-affirming care for trans and non-binary youth. Even though gender-affirming care "has been shown to reduce suicide ideation and attempts in transgender individuals."

Assuming some transgender Iowans and families file suit, the state will need to demonstrate Senate File 538 is "narrowly tailored to serve a compelling government interest." How is a ban on all gender-affirming health care for all trans youth—regardless of what their parents want, their doctors recommend, or the risk of leaving their gender dysphoria untreated—narrowly tailored? What compelling government interest does it serve?

Reynolds and Republican lawmakers have expressed concern about the long-term risks of hormones and other treatments. The governor said she signed the bill to protect "the best interest of the kids."

Really? The state is better placed to determine what's in a child's best interest than that child's own parents, after consulting with the child's own physicians?

Perhaps GOP lawmakers believe that writing an exception for Senate File 538 into a new Iowa Code section will convince judges to let the state trample on parents' right to direct their own child's medical care—if that child is transgender.

Good luck with that.

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