Restoring Ordered Liberty to Protect the Next Generation

Written by Clint Elliott

Ordered Liberty

Have you noticed how the government seeks to assume the care, custody, and control of children? Have you seen the plight of educators who want to educate and not indoctrinate children in ungodly ideologies? How did we come to this moment in our nation, and how will we respond?

On his first day in office, President Biden signed what the White House called “one of the most comprehensive executive orders in history on LGBTQ+ rights.” In that order, he unilaterally declared that Title IX now prohibits discrimination based on gender identity. Title IX is the 1972 law designed to protect girls’ opportunities in sports.

The False Narrative

Through this and other executive orders, the President has demonstrated his desire that biological boys who chose to identify as girls should have unfettered access to girls’ locker rooms, showers, overnight sleeping accommodations, and sports teams at public schools. The federal Department of Education and the Kentucky Department of Education quickly pushed this agenda by issuing like-minded guidance for school administrators. For example, in July 2022 the DOE issued a 700-page proposed rulemaking to add “gender identity” to Title IX. And in September 2022 the KDE issued guidance for the use of preferred pronouns and cautioned teachers against disclosure to parents of a child’s gender transition expression, such as the use of new pronouns. In fact, the KDE wrote: “it is best practice for the educator to maintain that confidence and keep this information confidential.”1

By perpetuating this false narrative through made-up terms (such as “cisgender”), redefining words (such as ”birthing person”), and withholding information from parents, the government wants to push the next generation’s worldview into anti-realism.

Certainly, some individuals experience legitimate gender dysphoria that warrants compassionate considered care. But the aggressive push to normalize gender identity ideology among children in public schools contradicts reality. It also propagates extreme autonomy and self-expression contrary to our history and tradition of ordered liberty.

Restoring Ordered Liberty

Thankfully last year in the monumental case of Dobbs v. Jackson,2 Supreme Court Justice Alito reigned in the notion of boundless self-expression while restoring ordered liberty, writing:

While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of ‘liberty,’ but it is certainly not ‘ordered liberty.’ Ordered liberty sets limits and defines the boundary between competing interests.

More and more, federal courts increasingly set a course to restore ordered liberty. They recognize the limits and boundaries of societal freedom, particularly in response to gender identity ideology.

For example, the Eleventh Circuit Court of Appeals recently upheld a Florida school district’s policy requiring boys and girls to use separate bathrooms in public schools. The federal court explained that “this case involves the unremarkable – and nearly universal – practice of separating school bathrooms based on biological sex.” Thus, the court rightly concluded that “separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX,” i.e., it’s consistent with ordered liberty.3

In another recent federal court decision responding to gender ideology in the classroom, the court recognized the importance of parents’ right to the care, custody, and control of their children as “deeply rooted in this Nation’s history and tradition . . . and implicit in the United States’ concept of ordered liberty”4 In that case, parents complained of a first-grade teacher who imposed her agenda to indoctrinate her students in gender identity ideology. In response, the court explained that the right to instill moral standards and religious beliefs in children resided with the parents and not educators. The court declared that “teaching a child how to determine one’s gender identity at least plausibly is a matter of great importance that goes to the heart of parenting.” The court concluded that such a right is not merely hypothetical but “must be enforceable.”

In the current context of gender identity ideology in public schools, parents’ rights represent essential historical and traditional components of ordered liberty.

By way of further example, a Christian teacher recently challenged her school district’s policy prohibiting teachers from discussing a student’s gender transition with the student’s parents, in part by advocating for parents’ rights.5 In that regard, the federal court acknowledged the teacher’s First Amendment religious exercise claim based on her beliefs in these four things.

  1. God immutably creates each person as male or female;
  2. The Bible prohibits dishonesty and lying;
  3. Referring to children with pronouns inconsistent with biological sex is harmful because it is untrue; and
  4. Parents have a fundamental right to control the upbringing and education of their children.

The court agreed with the teacher’s concern about parents’ rights, emphasizing that parents’ rights are “perhaps the oldest of the fundamental liberty interests” recognized by the U.S. Supreme Court. As the court explained:

It is difficult to envision why a school would even claim – much less how a school could establish – a generalized interest in withholding or concealing from the parents of minor children, information fundamental to a child’s identity, personhood, and mental and emotional well-being such as their preferred name and pronouns. But this proves the point that the District’s claimed interest is an impermissible one because it is intended to interfere with the parents’ exercise of a constitutional right to raise their children as they see fit.

At the Justice Defense Foundation of Kentucky, we applaud the restoration of ordered liberty. And we pray that empowered parents and educators will contribute their voices through thoughtful and persuasive reasoning in response to the ideologies in our culture coming against the knowledge of God. Together, we must show up, stand up, and speak up for the next generation’s sake.

1 Kentucky Department of Education, Consideration of Using Preferred Names (September 2022).
2 597 U.S. ___ (2022).
3 Adams v. School Board of St. Johns County, et al., Case No. 18-13592 (11 th Cir. 2022).
4 Tatel v. Mt. Lebanon School Dist., et al., Civil Action No. 22-837 (W.D. Pa. 2022).
5 Ricard v. USD 475 Geary County, KS School Board, et al., Case No. 5:22-cv-04015-HLT-GEB (D.Kan. 2022).

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