Virginia Explained: How the state got its parents’ rights law

The Virginia law widely cited by Republicans as the foundation for their push to empower parents began with a legal dispute about when sperm donors should and shouldn’t be considered fathers.

In 2013, the Supreme Court of Virginia ruled that a man whose sperm had been used in an assisted conception process with his long-term partner didn’t lose his parental rights simply because he hadn’t been married to her.

According to court records, the man who brought the case had been in a relationship with the woman, and the couple had agreed to have a child through in vitro fertilization after being unable to conceive naturally. When the relationship ended a year after the baby was born, the man claimed he was being wrongfully cut out of the child’s life.

Lower courts blocked his custody efforts because of a state law that prevents sperm donors from claiming parental rights unless they’re the gestational mother’s husband. But that policy, the state Supreme Court wrote as it sided with the would-be father, couldn’t justify severing “the constitutionally protected relationship he had begun to establish with his infant child.”

“Simply put, there is no compelling reason why a responsible, involved, unmarried, the biological parent should never be allowed to establish legal parentage of her or his child born as a result of assisted conception,” the court wrote.

In its 2013 session, the General Assembly passed a one-sentence bill in response to that ruling, with proponents saying it would enshrine the widely recognized common-law concept of parental rights in state code.

“A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child,” the Virginia law reads.

With Gov. Glenn Youngkin heavily focused on pro-parent messaging, that law has recently been cited to justify a range of GOP policy positions, including mask-optional COVID-19 policies for public schools, parental notification for explicit school reading assignments and mandatory parental approval if students want to transition to a different gender at school socially.

Some critics feel Republicans’ emphasis on parents knowing best glosses over the reality that what parents want doesn’t always match the interests of their child or school policies designed to accommodate all families.

In a comment opposing Youngkin’s proposed policies on transgender students, the ACLU of Virginia said his administration had taken a Democratic law written to protect trans kids and retooled the policy to be about “the supposed vindication of the rights of parents.”

“For example, the section titled ‘Guiding Principles’ focuses almost exclusively on ‘parental rights,’ rather than the needs of transgender students,” the ACLU wrote.

In custody and visitation disputes, the best interests of the child are a key consideration for the courts, according to attorney Daniel Gray, who chairs the Virginia Bar Association’s Family Law Coalition. State law instructs courts to weigh numerous factors in adjudicating those disputes, including the child’s developmental, emotional, and physical needs, the level of parental involvement, and the child’s “reasonable preference.”

The state has a legal process for terminating the rights of parents deemed unfit or incapable of providing care, and court records show it was initiated more than 2,200 times in 2021. Gray said that the types of situations that cause authorities to take that step can vary and have changed over time.

“There is no hard and fast rule, but you’d be looking for things like physical abuse of a child; serious, chronic, and untreated substance abuse issues; and an inability to provide adequate care for the child,” Gray said in an email.

More than 5,100 abuse and neglect cases were filed last year, according to Virginia Juvenile and Domestic Relations court data.

‘The oldest of the fundamental liberty interests’

Numerous U.S. Supreme Court rulings have upheld parents’ constitutional rights, including the landmark Pierce v. Society of Sisters opinion in 1925 that struck down an Oregon law requiring children to attend public schools. In a 2000 court ruling, Justice Sandra Day O’Connor called parental control of children “perhaps the oldest of the fundamental liberty interests recognized by this Court.”

When the Virginia law was passed almost a decade ago, legislators had a measured discussion, with both sides acknowledging parental rights are important but not unlimited.

Democrats who voted against the bill warned it could have unintended consequences, arguing the law might tilt the scales on complicated legal questions of when the government should overrule parents’ wishes to ensure children’s best interests.

When the bill came to the floor of the House of Delegates, then-Minority Leader David Toscano, D-Charlottesville, warned that even though the language sounded like an unobjectionable endorsement of parental involvement, it could have unintended impacts on how courts handle custody and visitation issues, as well as cases of abuse and neglect.

“It creates some problems that we haven’t thought through,” Toscano said, according to an archived video of the 2013 session.

Then-Del. Jennifer McClellan, D-Richmond, said in cases where parents are fighting over a child, the law could force judges to grant joint custody “whether they think that’s in the best interest of the child or not.”

The Republican sponsor of the bill, then Del. Brenda Pogge, R-James City,  explained that it was meant as a broad instruction to the courts that parental rights should be respected, not something designed to bring about dramatic change.

“The compelling interest of the state will be able to interfere with a parent’s fundamental rights,” she said on the House floor.

She described the bill as a stand against a “national trend” of parents’ rights being diminished.

“And it could happen in Virginia,” Pogge said. “Virginia parents are in danger of having their fundamental rights eroded because the General Assembly has never instructed the courts as to the level of protection that is to be given to parental rights.”

Gray said the 2013 legislation hasn’t had a major impact on how courts handle family law and mostly “restates” the Supreme Court’s view of parental rights.

Parents’ prerogatives and rights of trans kids

Republicans have spent more than a year making a case that erosion has come to pass, helped partly by former Gov. Terry McAuliffe’s 2021 debate stage comment that parents shouldn’t be “telling schools what they should teach.” Some Democrats maintain McAuliffe was making a valid point about not letting activist parents dictate school curriculum, but others have acknowledged the comment came across as an overbroad repudiation of parents having a say in how schools are run.

Students at Richmond’s Open High School during a walkout on Sept. 27, 2022, to protest new transgender student policies by Gov. Glenn Youngkin. (Sarah Vogelsong / Virginia Mercury)

Last week, many conservatives expressed outrage over a potential bill from Del. Elizabeth Guzman, D-Prince William, to make it easier to pursue child abuse cases against parents who cause physical or mental harm to a child based on gender identity or sexual orientation.

Guzman filed a similar bill in 2020 that never advanced out of subcommittee, but Republicans have been eager to spotlight what they say is an effort to use government power to punish parents who take a cautious or skeptical approach to gender identity issues. Guzman’s proposal sent Democrats scrambling into damage control mode, with party leaders saying the bill had no chance of passing. Guzman said the bill had been mischaracterized and was not meant to instruct authorities to target parents just for being unsupportive of a child who identifies as LGBTQ.

The 2013 parents’ rights law could have a direct bearing on how the state ultimately balances parents’ prerogatives with the rights of transgender minors. A conservative legal group, the Alliance Defending Freedom, is currently challenging a Harrisonburg City Public Schools policy that instructs teachers to accommodate students who want to adopt a new gender identity at school without their parent’s knowledge or consent. The lawsuit claims that the policy violates Virginia’s parents’ rights statute, arguing parents have a fundamental right to “guide their children through difficult and potentially life-altering decisions.”

LGBTQ advocates and many school officials say outing transgender minors to their parents without their consent violates their privacy and autonomy and could put them at risk of harm from unaccepting parents.

“Fundamentally, rather than subvert the constitutional rights of teachers and parents, the Nondiscrimination Policy serves to protect the constitutional rights of students and their families to receive a free, appropriate education, regardless of their identity or background,” lawyers for the Harrisonburg school system wrote in response to the lawsuit challenging the gender identity policy.

The Harrisonburg case will be heard in court on Nov. 1.

In a recent interview, Toscano, the former House Democratic leader, said his comments about unintended consequences of the parents’ rights law have been proven correct.

“I think that the Youngkin administration has gone a little overboard on this issue,” Toscano said. “Most people think parents ought to be actively engaged in their children’s education and are in a good position to advocate for their kids. That being said, it is not a hundred percent the case that they always should have the final say.”

In a Sunday morning interview on CNN earlier this month, Youngkin reiterated his view that parental involvement is a paramount concern when it comes to gender identity issues.

“Let’s be clear: Parents have this right,” Youngkin said. “Children don’t belong to the state. They belong to families.”

by Graham Moomaw, Virginia Mercury