Democrats Who Make Their States 'Safe Havens' For Transgender Kids Could Be in Trouble

Gavin Newsom (Patrick T. Fallon/AFP via Getty Images)
April 19, 2023

Blue states that give shelter to minors from other states who want to get sex changes without parental consent may be violating the Constitution, experts say.

Colorado Gov. Jared Polis (D.) last week signed "safe haven" legislation, which offers protection to minors who cross state lines to undergo gender surgery or have an abortion and legal shields to doctors who perform the procedures. California Gov. Gavin Newsom (D.) signed a similar law last year, and Washington State is poised to follow suit. But while popular among progressives, these bills may be on shaky legal ground.

"All it’s going to take is one parent whose minor child has been shielded from them, and this [policy] will fall under a constitutional challenge," Sarah Parshall Perry, senior legal fellow at the Heritage Foundation told the Washington Free Beacon. "Absolutely, these are violations of the 14th Amendment. Every time we see the state standing in loco parentis, or trying to step into the shoes of the parent, that immediately raises constitutional red flags."

The 14th Amendment bars states from making "any law" that denies Americans "equal protections of the law." In a landmark 1997 case, the Supreme Court clarified that the amendment protects the "fundamental right of parents" to raise, care for, and educate their children as they see fit. In their rush to enshrine minors' rights to undergo controversial medical procedures without parental consent, blue state leaders may run afoul of this precedent, legal analysts say.

Should a court strike down California or Colorado’s safe haven laws, it could throw a wrench in Democratic agendas across the country. Democratic lawmakers in Oregon and Minnesota are pushing safe haven laws of their own, while California and Washington State are both advancing bills that would let the state take custody of children whose parents don’t support their transgenderism.

Constitutional challenges to these and similar progressive legislation have been simmering at the local level for years. Parents are suing school districts that told teachers and administrators to lie to parents whose children were presenting as a different gender at school. These lawsuits include a case in Wisconsin where judges have temporarily blocked the Madison Metropolitan School District from deceiving parents about their kids while the complaint winds its way through the courts.

Matt Sharp, senior legal counsel for Alliance Defending Freedom, says schools have a duty to inform parents when their children are experimenting with transgenderism.

"We know that if a student has low performance on tests, or behavioral or other issues, schools have a duty to notify parents, and so we think it’s the same thing," Sharp said.

According to Sharp, laws that encourage children to run from their parents "not because of evidence of physical abuse, but a disagreement over parenting philosophy" clearly violate parents’ 14th Amendment rights. He also noted the growing pushback in Europe, where countries that once pushed sex changes for minors have reversed course.

Even as constitutional challenges loom, Democrats are forging ahead with safe haven bills. Oregon Democrats notched a win last week when their safe haven bill advanced out of committee, even though the state's nonpartisan legislative counsel noted it would be "up to the court to decide" whether or not the state’s safe haven laws violate the 14th Amendment.

The session was not without controversy. Democratic leaders in the chamber were shocked when the counsel noted that their bill would allow girls as young as 10 to get an abortion without parental consent. A few committee leaders can be heard expressing their disbelief at the counsel's verdict in video of the session.

"Wow, well alright that's just shocking," one committee member said.