The Texas Supreme Court on Friday upheld a conservative priority banning medical treatment for the purpose of a child transitioning to the opposite sex.
Overturning an injunction from a Democratic trial court judge, the all-Republican high court said Friday the state legislature was well within its constitutional authority to limit the practice of medicine when it implemented a policy limiting the types of medical procedures available to children.
The legislature, the majority said, made a “permissible, rational policy” given the “relative nascency” of gender dysphoria and treatments for it, including hormone therapy.
“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,” Justice Rebeca Aizpuru Huddle wrote for the court.
The law doesn’t “unconstitutionally deny or abridge equality under the law because of sex or any other characteristic asserted by plaintiffs,” Huddle added.
Parents, the court said, have a right to make decisions for their children without government interference, but it’s not an absolute right, the court said.
“We have never held that a fit parent’s interest in caring for her child free from government interference, though weighty, triggers heightened scrutiny of every statute that restricts any asserted right connected to that interest,” Huddle wrote.
The legislature has power to provide direction when there are new, previously unconsidered questions about “the appropriate line between parental autonomy on the one hand and the Legislature’s authority to regulate the practice of medicine on the other,” the court said.
Justice Debra Lehrmann dissented, saying the majority decision “effectively forecloses all medical treatment options” currently available to children with gender dysphoria.
“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,” Lehrmann wrote.
The 8-1decision is a significant win for conservatives nationwide in a broader bid to limit gender affirming care for children. Texas is the largest state among roughly two dozen with laws that prevent minors from undergoing medical treatments for gender dysphoria until they are adults. Unlike most of the other states, which are defending the law against federal claims brought under the 14th Amendment, Texas is defending it under its state constitution.
The justices signaled support for the law during oral arguments on Jan. 30. Challenging an opposing view that parents should have discretion over their child’s medical needs, Justice Jeff Boyd said that parental authority only goes so far. State laws restrict parents from deciding when their child can drive or get married, he said.
Justice Jane Bland reasoned that other medical treatments are banned for children, including ephedrine for low blood pressure.
The law makes exceptions in certain cases. Children who started receiving treatment before June 1, when Gov. Greg Abbott (R) signed the law, are able to gradually stop treatment in order to minimize the risk of complications.
The law doesn’t apply to drugs to normalize puberty for a minor experiencing early puberty. It also doesn’t apply to treatments to a child born with a genetic sex development disorder.
Transgender children, their parents, and doctors filed lawsuit last summer before the ban was set to take effect. Among their claims was it unlawfully discriminates against the children based on transgender status. The doctors said it violates their right to practice medicine.
A Democratic district court judge held a two-day bench trial in August, siding with the plaintiffs and issuing a temporary injunction. But the order never went into effect, because the Texas Supreme Court issued a stay after the attorney general’s office appealed the injunction. That stay let the law go into effect Sept. 1.
Texas is represented by the state attorney general. The parents are represented by lead counsel Scott Douglass & McConnico LLP.
The case is Texas v. Loe, Tex., No. 23-0697, 2/9/24.