A bill will soon be presented to the Colorado Senate that would potentially clear the way for the state to strip parents of custody of their children if those parents refuse to affirm their child's chosen gender identity. This is how one progressive platform describes the bill, known as the Kelly Loving Act, named for a transgender individual who was murdered in the Pulse nightclub shooting:
Writing in Deseret News, Eva Terry summarizes what the bill would mean for orthodox Christian parents in Colorado if they have a child who identifies as transgender:
Its text states that “deadnaming, misgendering or threatening to publish material related to an individual’s gender-affirming health-care services” will be deemed “coercive control” and will influence the court “when making child custody decisions and determining the best interests of a child for purposes of parenting time.” ...
In short, if parents call their child by the wrong name or fail to use their preferred pronouns, they could be liable to lose custody.
One thing we can say about this bill, as Christians, is simply that it is a bad bill that directly attacks the integrity of the family as well as opening up Christians (as well as anyone else who dissents from the successor ideology's understanding of gender) to serious legal danger for living according to their conscience. The plausible nightmare scenarios confronting families as a result of this bill practically present themselves.
From both a parental rights point of view and a religious liberty point of view, the bill is a disaster—though sadly par for the course in Colorado, as Jack Phillips well knows. If you're a Christian in Colorado, please contact your representatives. At this point all that remains for it to become law is passing the Senate, where Democrats hold a nearly two-to-one advantage in representation and then being signed into law by the state's Democratic governor.
That said, there is a further point that needs to be made about this. It is tempting when considering a proposal like this to identify the problem as over-active progressive activists seeking to advance an increasingly unpopular political project. This largely misses the point, however. The fight here is actually more basic than this, more foundational. It has less to do with the tactics of activists and much more to do with the nature of reality.
At bottom, the problem here is that given the way our nation currently understands marriage, laws like the one now being debated in Colorado are an obvious extension of the view of marriage our nation already holds. For the past ten years we have already held, as a nation, that the state defines marriage. Why then should the state not also get to define what a parent is or what good parenting is? The Kelly Loving Act, in other words, is an obvious outworking of the logic of Obergefell, the Supreme Court ruling that redefined marriage.
Here is what I mean: Before Obergefell, it was understood that marriage's purpose in society was to insure that the children resulting from a sexual relationship between a man and a woman would be cared for, provided for, nurtured, and so on. The inherent fruitfulness of heterosexual sex created a "problem" in the form of new life which needed some sort of response. Marriage was recognized as the "solution," if we must speak in those terms.
What is significant here is that it was a biological fact about reality itself that led to the need for that understanding of marriage: Because human biology works the way that it does, it is necessary that we have this thing called "marriage" to make sure—to put it crassly—that men are socially encouraged and even pressured to provide for the children they beget and to remain committed to the mother of their children. Marriage thus arises in response to biological realities. This is what the early Protestant political theorist Althusius meant when he argued that marriage is a "natural" social institution: the family will reproduce itself organically in a way that governments or businesses or even local churches cannot. So when government considers marriage, it does not create or define marriage, but simply recognizes marriage because marriage as a social relationship is actually more basic and primordial to humanity than government is and therefore it comes before government.
What the Obergefell ruling did was obliterate this conception of marriage and, by extension, this conception of government's relationship to marriage. The vision of marriage proffered by Obergefell was, in contrast, a solution to a problem that did not really exist: same-sex relationships, after all, are by their very nature sterile. There are no children produced by a relationship between two men or two women and therefore there is no need for an institution to be developed to provide for those children.
The justification for same-sex marriage, rather, was that marriage had in the aftermath of the Pill already evolved into a kind of capstone achievement in life in which a person's strongest emotional and romantic attachment was given a special kind of stamp of endorsement by society as an affirmation of the choices and identities of the two parties in the relationship. Marriage was a way of making socially legible the strong emotional and sexual attachments existing between two individual careerists. Because children were no longer thought to be an inextricable part of marriage there was no reason to limit social recognition and conferred benefits to couples that naturally bear children.
Crucially, this means that with Obergefell the relationship between government and marriage was reversed: After Obergefell government came first and marriage was a social relationship defined, sanctioned, and created by government. This, in turn, created an enormous amount of problems, all of which will be "solved" by the state, as I have explained in the past:
If we wish to have married same-sex couples that look and behave like heterosexual couples, we must necessarily introduce a third party to make that possible because that is the only way such a thing can be done. In fact, we must introduce multiple third parties. We must introduce a third party of the opposite sex of the couple that makes child-bearing possible, either via sperm donation or carrying a child to term and delivering the baby.
We must also introduce a third party that will regulate and control how the process of child-bearing will be done since such practices, which are necessary if same-sex marriage is going to exist as a real thing, are obviously open to massive abuses and create complicated legal situations.
We could even turn the screws a bit more here: If marriage comes first, then the most basic human relationship is one marked by love, self-giving, mutuality, and fruitfulness. If government comes first, then the most basic human relationship is one marked (partially) by coercion, by the threat of force. (To be sure, violent abuse does sometimes occur within marriage. But, of course, the reason we recognize domestic abuse as licit grounds for divorce is because we recognize that violence does not belong in marriage.)
And this now brings us back to the Kelly Loving Act in Colorado: If Obergefell says that the state comes before marriage, that the state says what marriage is, then by the same token does the state not also get to say what parenting is, what a family is, what the body is, and so on? Through Obergefell we already said, as a nation, that government gets to define reality, as it were. We should not be surprised, therefore, when progressives in government take that ability seriously and decide to deploy it in service of their political ideals.
The problem with the Kelly Loving Act, then, is not primarily one of out of control activists, but rather that this bill is, in fact, the natural outgrowth of the redefinition of marriage that took place ten years ago. So, yes, recognize the problems with the bill.
But do not miss the larger problem here: If marriage is what Obergefell says it is, then we should expect to see bills like this one. We should also recognize that resisting them is, in some sense, to rush into the strong headwinds of contemporary American law. And, finally, we should recognize that defeating such ideas is not chiefly a matter of exerting political pressure on elected officials; it is, rather, a matter of demonstrating through our lives a still better way—a way defined by the care, mutuality, and love that our neighbors desire, often without even understanding what those things truly are.