Texas Supreme Court allows ban on gender-affirming care for minors to go into effect

The Texas Supreme Court building in Austin.
The Texas Supreme Court building in Austin.
Wikimedia Commons/WhisperToMe

The nine-member Texas Supreme Court on June 28 voted 8-1 to reverse a Travis County circuit court’s temporary injunction and allow a state law banning gender-affirming medical care for minors to go into effect.

The ruling in State of Texas v. Loe resulted in an opinion for the court accompanied by four lengthy concurring opinions, and a substantial lone dissenting opinion.

Senate Bill 14 was enacted in 2023 and was set to go into effect on September 1 of that year, but a group of parents of transgender minors joined by PFLAG, and a group of medical practitioners joined by the American Association of Physicians for Human Rights, filed a lawsuit challenging the statute under the Texas Constitution. The decision to sue under the Texas Constitution in state court was surely intended to give the plaintiffs room to argue that the Texas Constitution could be interpreted to find broader protection for individual rights than the federal constitution, and to avoid having the case fall into the hands of ultra-conservative federal district judges in Texas, the very conservative US Court of Appeals for the Fifth Circuit, or the activist conservative majority on the US Supreme Court. The federal courts would have no authority to review a decision based solely on Texas state law.

However, the strategy failed because the Texas Supreme Court is a solidly Republican bench. Texas Supreme Court justices are elected statewide, and judicial elections tend to reflect statewide political divisions. It has been decades since a Democrat has won a statewide office in Texas. Although some urban areas in Texas elect Democrats to the local trial courts, appeals go to a Supreme Court that is highly unlikely to buck the Republican legislature on socially and politically charged issues, and such proves to be the case here.

The trial court in liberal Travis County was convinced that plaintiffs were likely to win their claims that the law violates parental rights, medical practitioner rights, and the rights of transgender minors seeking treatment. Eight of the nine members of the Supreme Court disagreed, finding persuasive (although of course not binding) decisions by the US Court of Appeals for the Sixth and 11th Circuits that have upheld such treatment bans against federal constitutional challenges. A key to this result when it comes to assessing parental rights to make treatment decisions for their children is that this is an unenumerated right that neither the federal nor Texas constitutions spell out explicitly. Although both federal and Texas courts have recognized parental rights, such rights are not treated as absolute.

Under the federal Due Process Clause or the Texas “Due Course” Clause, the rights of parents are “implied” as an aspect of protected liberty, but the Texas court’s opinion by Justice Rebecca A. Huddle follows the recent trend of federal constitutional law, as articulated, for example, in Justice Samuel Alito’s opinion for the Supreme Court in the Dobbs abortion decision. According to that view, which Justice Huddle echoes in her opinion under the Texas Constitution, constitutional provisions are to be interpreted according to the meaning they would have when they were adopted, and in Texas there is a 19th century constitution, adopted at a time when the idea of gender-affirming care and, indeed, the ideas of gender identity and gender dysphoria and gender transition were far in the future.  The court considers the medical treatments involved as “novel” and potentially harmful to minors and thus subject to overriding state regulation.

If a court’s approach emphasizes history to the extent embraced in Dobbs and by Justice Huddle in State v. Loe, then the answer is clear to all but one member of the court: There is no deeply rooted historical right of parents to provide medical treatment to their children for the purpose of gender transition. Although the court readily concedes that Texas precedents recognize strong parental decision-making rights, the court points out that the state constitution specifically authorizes the legislature to regulate the practice of medicine, and the court holds, in various verbal formulations in the main opinion and the concurring opinions, that the parental right does not extend to medical treatments that the legislature has decided to outlaw.

Furthermore, taking on the question of whether outlawing the treatments would violate the professional rights of licensed health care workers or the equality rights of transgender youth, the court points to the asserted hot debate in the medical field about appropriate treatment for transgender minors, leaving open the conclusion that the legislature could rationally decide that it would embrace a view that has some support among medical practitioners that gender-affirming care should be limited to counseling until an individual reaches the age of majority.

The court concluded that the plaintiffs had “failed to establish a probable right to relief on any of their three asserted constitutional violations,” wrote Justice Huddle. “We therefore reverse and vacate the trial court’s Temporary Injunction Order.” This is not necessarily the end of the case, since the appeal concerned only the temporary injunction, leaving the trial court to proceed to a determination of the merits of the case. But the Supreme Court’s description of the legal analysis leaves little doubt that if the trial court persists in ruling for the plaintiffs, it will be reversed by the Texas Supreme Court. 

There is no possibility of appealing this ruling to the US Supreme Court. Even though the Texas court extensively cites and treats as persuasive precedents of federal appellate rulings supporting bans on gender-affirming care, the opinion is explicitly based only on the state constitution, shielding it from Supreme Court review.

The issue is not evading Supreme Court review anyway, however, since that court recently granted review of the Sixth Circuit Skrmetti ruling, which upheld bans on gender-affirming care for minors enacted in Tennessee and Kentucky. 

There is a dissent from the Texas ruling. Justice Debra H. Lehrmann’s opening paragraph says it all.

“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,” Lehrmann wrote. “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 category 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.” 

Judge Lehrmann charges that the court is defying its own precedents.

“Although this court has enshrined a robust conceptualization of parent autonomy for many years, in the blink of an eye, the court tosses that precedent aside today. Contrary to the court’s holding, the Due Course Clause protects parents’ rights to make medical decisions for their children and, because S.B. 14 directly infringes upon that decision-making authority, it must withstand strict scrutiny.”

Judge Lehrmann’s dissent is lengthier than the other opinions and sounds the alarm that the court’s opinion “puts all parental decisions at risk of being overruled by the government.” But hers is a lonely voice.

The plaintiffs are represented by a large litigation team representing several organizations: Lori B. Leskin, Kennon L. Wooten, Elizabeth Gill, Paul Castillo, Shawn Thomas Meerkamper, Sasha J. Buchert, Adriana Pinon, Brian Klosterboer, Karen L. Loewy, Harper Seldin, Milo Inglehart, Allissa Aileen Pollard, Chloe Kempf, Dale Melchert,  Lynly Egyes, Lauren Ditty, and Omar Gonzalez-Pagan.