Should Libertarians Endorse Bans on Gender Affirming-Care for Minors?

Twenty-six states have banned gender-affirming care for minors. The Biden administration has argued before the U.S. Supreme Court, in United States v. Skrmetti, that such laws violate the 14^th Amendment’s Equal Protection Clause by discriminating on the basis of sex. The Court’s decision will presumably come in June.

Setting aside the constitutional issue, what should libertarians think about such laws? Consider the case where the minor, the parents, and their doctors all wish to pursue this path. Assume also no taxpayer funding. And take as given that libertarians accept a legal “age of majority,” with parents having control over significant decisions for their children below that age.

Under these conditions, the natural default for libertarians is to oppose such bans, since they restrict the freedom of minors and their parents.

The obvious counter is that minors and their parents might be making a mistake, failing to account for relevant medical and psychological risks, or for the difficulty of reversing such treatments.

Yet the same is true for myriad actions that minors can legally pursue (often subject to parental approval). Contact sports like football, lacrosse, and wrestling have high concussion rates. In some states, children as young as fourteen can obtain learner’s permits, and many states offer full licenses to sixteen-year-olds. Current laws leave to parents and their children whether to attend religious or secular schools; whether to study liberal arts of voc-tech; or whether to participate in extracurricular programs. All these choices can have major implications for the well-being of the minor.

Liberals and conservatives often respond to these arguments by suggesting that the government can decide which risks are not worth taking and restrict or ban such activities. Libertarians are skeptical of such arguments and loathe to substitute their own judgment.

This raises the question of whether gender-affirming care for minors should be an exception. If so, it requires a clear and compelling argument as to why libertarians should endorse government control in this case while opposing similar interventions in virtually all others.

And since rational people will disagree over the costs and benefits of gender-affirming care, the crux of the debate is who gets to decide. While conservatives and liberals tend to agree that the government should play some role in this decision-making process, libertarians grant parents and their children greater independence.

This is not to say private decisions are always correct, but instead that the law should allow parents and children to make decisions, acknowledging that mistakes will occur (just as they would under paternalism, and just as occurs for the huge range of other decisions left to parents and children).

Nothing in Libertarianism dictates that doctors should be able to provide such care without parental consent, given acceptance of a legal age of majority. Current laws require parental consent for a wide range of activities, including the majority of the aforementioned ones—presumably the same standard would apply here. Questions about insurance coverage, while important, are separate from the fundamental issue: whether the government has a legitimate role in restricting gender-affirming care for minors.

Thus, absent a compelling argument that distinguishes gender-affirming care for minors from other decisions the law routinely leaves to parents and their children, libertarians should oppose government restrictions that override the judgment of children, families, and their doctors.