Texas high court OKs state ban on gender-affirming care for minors

AUSTIN, Texas (CN) — The Texas Supreme Court put a stamp of approval on the state’s ban on drug therapies and surgeries to treat minors with gender dysphoria, ending the preeminent legal challenge that sought to render the statute unconstitutional. 

The 8-1 court reversed a lower court's ruling blocking the state from enforcing Senate Bill 14, a law that prohibits physicians from prescribing hormone blockers and therapies as well as surgical procedures to anyone under the age of 18 years old.

Doctors risk civil penalties as well as being unable to renew their medical license if found to have provided such treatments. The only exception to the bill is if a child is intersex or is being treated for precocious puberty.

Plaintiffs in the suit include five parents of transgender children ranging from 10 to 17 years old, three physicians that provided gender-affirming care, and two national transgender rights groups — the Transgender Law Center and Lambda Legal.

Following the court's injunction, the Texas attorney general’s office filed an accelerated appeal, instantly staying the judge’s order.

Senate Bill 14 has been in effect since this past August. 

Justice Rebecca Huddle wrote in the 37-page opinion, that the Legislature lawfully used its constitutional authority to regulate who doctors may prescribe treatments such as hormone therapies, puberty blockers and surgeries meant to affirm one's gender.

Lynly Egyes, legal director at Transgender Law Center, said in a statement that "the court’s decision to reject safe and affirming care will have lasting impacts on all people in Texas. All Texans, no matter what they look like or the neighborhood they live in, should know that we will continue to work alongside our partners to fight for the rights of trans-Texans and their families.”

In a preamble to the opinion, Huddle was quick to specify that the court is not looking to decide whether gender-affirming care is an appropriate treatment for youth with gender dysphoria. Rather, it has set out to answer if the plaintiffs have shown a probable right to relief on their assertion that SB 14 violates their constitutionally protected rights.

In the parents’ view, SB 14 infringes on their right to make care decisions concerning their children which is protected under the Texas Constitution. They also argue that the bill denies equal protection for people based on being transgender.

The justices were unconvinced that gender-affirming care is outside the scope of government regulation.  

Using the example of tattoos, Huddle linked the government’s prohibition on minors from receiving a cosmetic alteration to their body to the prohibition on minors from altering their body to treat gender dysphoria and conform to their gender identity. 

“A fit parent’s fundamental interest in caring for her child free from government interference extends to choosing from among legally available medical treatments, but it has never been understood to permit a parent to demand medical treatment that is not legally available,” Huddle wrote. 

The doctors in the case had argued their right to “occupational liberty” is stifled by the law. Similar to the parents' claim of the right to make medical decisions on behalf of their children, Huddle wrote that physicians in the state have the privilege to practice medicine in the state and the state may regulate that practice in any way it sees fit.

“Texas physicians have no constitutionally protected interest to perform medical practices that the Legislature has rationally determined to be illegal," Huddle wrote.

On the parents’ assertion that the law discriminates against their children for being transgender, the justice rejected the notion that SB 14 favored one sex over another. Furthermore, Huddle declined to expand protective class status to transgender people.

The high court’s sole holdout, Justice Debra Lehrmann, wrote in her 31-page dissent that “The law is not only cruel — it is unconstitutional.”

Lehrmann wrote that the majority’s decision “permits the state to legislate away fundamental parental rights” without proper scrutiny under the Constitution. She concluded that SB 14 does infringe on parents’ right to make medical decisions for their children and objected to equating tattooing to what she sees as a potentially life-saving medical intervention. 

Despite the Legislature’s ability to regulate medicine, Lehrmann argued that these parental rights must also be taken into account.  

“While I agree that the Legislature has the general authority to regulate the practice of medicine, that authority is necessarily limited by the promises and protections of our Constitution; in fact, limiting the state’s intrusion into private action is the very reason for the Bill of Rights,” wrote Lehrmann. 

Justices Jimmy Blacklock and John Devine joined in a concurring opinion that used stronger language to affirm the state’s ability to ban gender-affirming care for minors and “uphold the traditional vision of human nature.” In separate concurring opinions, Justice Brett Busby and Evan Young stressed the importance of relying on the history and tradition of the nation and state to examine the constitutionality of the law. 

The Texas Supreme Court's decision comes after the U.S. Supreme Court on Monday announced that it will review a Tennessee law that bans gender-affirming care for minors during its next term. An outcome in that case has the possibility of giving a green light to the over 20 states that have passed such bans or protecting access to such care nationwide.  

Contrary to the outcry of lawmakers who view gender-affirming care as harmful, the medical community has supported it. The American Academy of Pediatrics, the Texas Pediatric Society, the American Psychological Association and the American Medical Association have endorsed gender-affirming care practices for transgender youth.

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