AUSTIN – The Supreme Court of Texas has upheld a state law which bans medical professionals from performing gender-affirming care for transgender youth, after previously overturning an injunction preventing that same law from being enforced.
In an 8-1 ruling issued on June 28, the Court found that Senate Bill 14, in effect since last September, lawfully prohibited doctors from performing gender-assignment surgeries or prescribing hormone blockers to individuals under the age of 18.
SB14 prohibits a physician or health care provider from performing certain actions on a child when those actions are performed for one of two purposes: (1) “transitioning child’s biological sex as determined by the sex organs, chromosomes, and endogenous profiles of the child”; or (2) “affirming the child’s perception of the child’s sex if that perception is inconsistent with the child’s biological sex.
SB14 further prohibited sterilization, mastectomy and removal surgery of any non-diseased body part or tissue, as well as puberty-blocking drugs or supraphysiologic doses of estrogen to males or testosterone to females, with limited exceptions. Such exceptions are for children experiencing puberty sooner or who have “a medically verifiable genetic disorder of sex development.”
Parents of five children, each diagnosed with gender dysphoria and between the ages of nine and 16 brought legal action in Travis County District Court, seeking an injunction to prevent the prohibition of their childrens’ gender-affirming care.
After holding an evidentiary hearing, the trial court entered such an injunction, finding that Senate Bill 14:
• “Likely violates Article I, Section 19 of the Texas Constitution by infringing upon the fundamental right of parents to make decisions concerning the care, custody, and control of their children”;
• “Likely violates Article I, Section 19 of the Texas Constitution by infringing upon Texas physicians’ right of occupational freedom”; and
• “Likely violates Article I, Sections 3 and 3a [of] the Texas Constitution by discriminating against transgender adolescents with gender dysphoria because of their sex, sex stereotypes and transgender status.”
At the end of August 2023, however, the state Supreme Court overruled the injunction, and permitted the law to become official while the legal proceedings remained pending.
Further, the State of Texas, Attorney General Ken Paxton, the Texas Medical Board and Texas Health and Human Services Commission appealed the underlying action to the state Supreme Court.
Supreme Court of Texas Justice Rebeca Aizpurru Huddle authored the majority opinion in the case, captioned State of Texas Et.Al v. Loe Et.Al.
“On direct appeal of the temporary injunction, we do not attempt to identify the most appropriate treatment for a child suffering from gender dysphoria. That is a complicated question hotly debated by medical experts and policy makers throughout this country and the world. And, to be sure, neither this Court nor any party to this proceeding suggests that children suffering from gender dysphoria are undeserving of treatment and support. The reverse is obviously true: They, like all children, deserve the most appropriate treatment together with support, love and empathy. We emphasize, though, that the only question we are called upon to answer is a distinctly legal one: Whether plaintiffs in this case have established a probable right to relief on their claims that the Legislature’s prohibition of certain treatments for children suffering from gender dysphoria violates the Texas Constitution. We conclude that plaintiffs failed to meet that burden,” Huddle stated.
“We conclude the Legislature made a permissible, rational policy choice to limit the types of available medical procedures for children, particularly in light of the relative nascency of both gender dysphoria and its various modes of treatment and the Legislature’s express constitutional authority to regulate the practice of medicine. We therefore conclude the statute does not unconstitutionally deprive parents of their rights or physicians or health care providers of an alleged property right in their medical licenses or claimed right to occupational freedom. We also conclude the law does not unconstitutionally deny or abridge equality under the law because of sex or any other characteristic asserted by plaintiffs. We therefore reverse and vacate the trial court’s order.”
Huddle added, “[The Court’s] precedents acknowledge that parental rights, though weighty, at times give way to other competing interests, such as the interest in protecting children from harm. This is underscored by our Constitution’s express authorization of legislative regulation of the practice of medicine. Thus, to the extent parents possess a fundamental interest in obtaining medical care for their children, it has extended only to those medical treatments that are legally available.”
Huddle also refuted the plaintiffs’ contention that the law was based in “anti-transgender animus” and compared it to other statutes which prohibit child labor and child access to tattoos and tobacco and alcohol products, which also limit parental authority.
State Supreme Court Justices Nathan Hecht, Jeffrey S. Boyd, John P. Devine, Jimmy Blacklock, J. Brett Busby, Jane Bland and Evan Young joined Huddle in the majority opinion – only Justice Debra Lehrmann dissented.
“At its core, this case presents a foundational issue: Whether the State can usurp parental authority to follow a physician’s advice regarding their own children’s medical needs. The parents at issue are thoughtful, conscientious caretakers who are doing the best they can to deal with serious health conditions with which their children have been diagnosed. They certainly are not mistreating their children. To the contrary, they are facing this challenge with extraordinary courage, fortitude and perseverance. The State’s categorical statutory prohibition prevents these parents, and many others, from developing individualized treatment plans for their children in consultation with their physicians, even the children for whom treatment could be lifesaving. The law is not only cruel – it is unconstitutional,” Lehrmann said.
“The Court claims that its decision today does not deprive children diagnosed with gender dysphoria of appropriate treatment; it is simply answering the legal question before it. Yet, answering the question does just what the Court denies – it effectively forecloses all medical treatment options that are currently available to these children. And it does so under the guise that depriving parents of access to these treatments is no different than prohibiting parents from allowing their children to get tattoos. Of course, there is nothing remotely medically necessary about tattooing. Confusingly, the Court relies on cases unrelated to medical care to support its holding that the Legislature’s authority to regulate the practice of medicine pre-empts the fundamental rights of parents. And though it admits that parental autonomy is a fundamental liberty interest encompassing the right to make medical decisions for one’s children, the Court nevertheless refuses to apply the constitutional scrutiny mandated for fundamental liberty interests.”
Lehrmann added that “real people express real concerns regarding gender dysphoria in today’s world.”
“The medical establishment has recognized this reality, and so should the judiciary,” Lehrmann stated.
Supreme Court of Texas case 23-0697
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com